The defendant attempted to appeal. Appeal dismissed for reasons stated in the opinion. Appeals in forma pauperis in criminal actions (695) are regulated by The Code, sections 1235 and 1236. They can be allowed only during term of court, and by the judge; otherwise, the appeal "is a nullity." State v. Dixon, 71 N.C. 204; State v. Gaylord, 85 N.C. 551. Neither the State nor the prosecutor can waive the requirements upon which leave to appeal in forma pauperis can be made. State v. Moore, 93 N.C. 500. "It is not a matter of discretion with the Court, but it is the right of the State to have an appeal dismissed when there is a failure to comply" with the requirements of the law. State v. Duncan, 107 N.C. 818; State v.Payne, 93 N.C. 13. *Page 492
Appeals in forma pauperis were not originally allowed in civil causes, under The Code of Civil Procedure, at all (Mitchell v. Sloan, 69 N.C. 10), but were first provided for by ch. 60, Laws of 1873-74, (Clark's Code, sec. 553), under which they could only be allowed, as in criminal cases, by the judge, and during the term (Stell v. Barham, 85 N.C. 88), but, by an amendment, ch. 161, Laws 1889, in civil causes appeals in forma pauperis can be allowed by the judge, either at term or on affidavit filed within five days after court, or the clerk may pass upon and allow such applications during term, or within ten days after its expiration.
But no amendment has been made in sections 1235 and 1236 in regard to pauper appeals in criminal causes which are still allowable only at term time, and by the judge. Indeed, chapter 192, Laws 1887, expressly requires the order to stay execution pending appeal to be made by the judge.
The motion to dismiss must be allowed. State v. Harris, 114 N.C. 830.
Appeal dismissed.
(696)