In the Matter of Stokley

83 S.E.2d 703 (1954) 240 N.C. 658

In the Matter of C. Walter STOKLEY.

No. 5.

Supreme Court of North Carolina.

September 29, 1954.

Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., for the State.

W. C. Morse, Jr., W. W. Cohoon, Elizabeth City, for petitioner-defendant.

WINBORNE, Justice.

In brief of defendant filed presently in this Court it is stated that the State contends that when a criminal action is brought from an inferior court to the Superior Court on certiorari, the Superior Court can act only as a court of review, and must act on the facts as they appear of record. This is not debatable. State v. King, 222 N.C. 137, 22 S.E.2d 241.

Certiorari, as a substitute for an appeal, must be applied for in apt time, State v. Lawrence, 81 N.C. 522; Taylor v. Johnson, 171 N.C. 84, 87 S.E. 981,—ordinarily at the next term of the supervising court. Surely eleven years, from 8 July, 1943 to 6 July, 1954, is not in apt time.

The error in granting the writ appears upon the face of the record proper. Compare State v. Todd, 224 N.C. 776, 32 S.E.2d 313. So whether the State has the right to appeal from the judgment rendered in this case, a point raised by the Attorney General, this Court, in the exercise of its supervisory power over courts of the State. N.C.Constitution, Art. IV, sec. 8, Taylor v. Johnson, supra, holds ex mero motu, that is, of its own motion, that after such lapse of time a writ of certiorari is not available to bring up for review by the Superior Court proceedings had in an inferior court eleven years previously.

Hence this Court is constrained to hold that the writ of certiorari was improvidently issued. Therefore the judgment below will be reversed, and the proceeding remanded to the Recorder's Court of Pasquotank County for further proceedings as to right and justice appertains and as the law provides. And to this end defendant will be taken into custody, and held to bail in the sum of $2,000 to abide the orders of the court.

Reversed and remanded.