#### STATE v. HOMER REED.

(Filed 12 December, 1928.)

Indictment — Indictment Drawn Under Statute Superseded by. Hater Act.

Where there is an erroneous conviction of wilful injury to personal property under C. S., 4331, when the indictment should have been drawn under chapter 61, Public Laws 1927, the prisoner should be discharged with permission to the solicitor to send another bill, if so advised.

Appeal by defendant from Moore, J., at June Term, 1928, of BuNCOMBE.

Criminal prosecution tried upon indictments charging the defendant with (1) larceny, (2) false pretense, and (3) wilful injury to personal property.

The evidence tends to show that the defendant hired an automobile from Clinton Littrell for approximately three hours, to go from New-found to Canton, á distance of about twenty miles; that instead of going to Canton the defendant went to Asheville, a distance of about fourteen miles; that the defendant did not return the car at the time agreed upon and that when he did return it, the car was in a badly damaged condition.

Verdict: Guilty on all three charges.

From the judgments pronoixnced on the verdict, 12 months on each of the first two charges, and 6 months on the last, the defendant appeals, assigning errors.

Attorney-General Brummitt and Assistant Attorney-General Nash for the State.

Thos. A. Gurry for defendant.

Stacy, C. J.

The record discloses no evidence of larceny, a fatally defective charge of false pretense, and an erroneous conviction under C. S., 4331, with a sentence of 6 months on the roads, when the indict*358ment sboulcl have been drawn under chapter 61, Public Laws 1927, and the sentence not more than 30 days imprisonment or a fine of not more than $50.00.

Let the defendant be discharged, with permission to the solicitor to send another bill, if so advised.

Reversed.