#### STATE OF NORTH CAROLINA v. LEROY PINKNEY

No. 7612SC37

(Filed 2 April 1975)

1. Criminal Law § 149— arrest of judgment — appeal by State

An order for arrest of judgment is based upon the insufficiency of the indictment or other defect appearing on the face of the record and is appealable by the State. G.S. 15-179.

*3172. Criminal Law § 149— setting aside verdict for insufficient evidence — appeal by State

The State may not appeal from an order setting aside the verdict in a criminal case on the ground that it is not supported by the evidence.

Appeal by the State from Smith, Judge. Judgment entered 9 August 1974 in Superior Court, Hoke County. Heard in the Court of Appeals 19 March 1975.

Defendant was indicted on a charge of armed robbery. He pleaded not guilty and was tried before a jury, which found him guilty as charged. The court entered judgment imposing a prison sentence. Defendant moved to set aside the judgment on grounds that there was insufficient evidence upon which to convict. The court entered an order for arrest of judgment, and the State appealed.

Attorney General Edmisten, by Assistant Attorney General James E. Magner, Jr., for the State.

James D. Little, Public Defender, Twelfth Judicial District, for defendant appellee.

ARNOLD, Judge.

[1, 2] An order for arrest of judgment is based upon the insufficiency of the indictment or other defect appearing on the face of the record. State v. Davis, 282 N.C. 107, 191 S.E. 2d 664 (1972) ; State v. Fletcher, 279 N.C. 85, 181 S.E. 2d 405 (1971). It is appealable by the State. G.S. 15-179. A judgment of nonsuit, on the other hand, has the force and effect of verdict of not guilty. G.S. 15-173; State v. Ballard, 280 N.C. 479, 186 S.E. 2d 372 (1972). The State may not appeal.

Although referred to by the trial court as an order for arrest of judgment, the order appealed from is in fact an order setting aside the verdict on grounds that it is not supported by the evidence. This Court is without power to review such an order.

Appeal dismissed.

Chief Judge Brock and Judge Parker concur.