#### STATE v. JOHN E. ELLIS.

(Filed 20 May, 1936.)

Constitutional Law F d: Criminal Law L f—

Upon defendant’s appeal from judgment and sentence by the court after defendant had entered a conditional plea of guilty under ch. 23, Public Laws of 1933, the case will be remanded in order that a jury may pass upon defendant’s guilt or innocence in accordance with defendant’s constitutional right.

Appeal by defendant from Williams, J., at November Term, 1935, of New HaNOveb.

Criminal prosecution, tried upon warrant charging the defendant with violations of the prohibition law.

From a conviction in the recorder’s court of New Hanover County and sentence of sixty days on the roads, the defendant appealed to the Superior Court, where he tendered a “conditional plea of guilty” under ch. 23, Public Laws 1933, which was accepted by the solicitor.

Upon hearing the evidence, without the intervention of a jury, the court adjudged the defendant “guilty” and sentenced him to two years on the roads.

Defendant appeals, assigning errors.

Attorney-General Seawall and Assistant Attorney-General McMullan for the State.

W. F. Jones for defendant.

Stacy, C. J.

It is conceded in the State’s brief a new trial must be awarded under authority of S. v. Camby, 209 N. C., 50, to the end that a jury may pass upon the guilt or innocence of the accused, as is his constitutional right. It is so ordered. S. v. Hill, 209 N. C., 53.

New trial.