#### STATE v. HENRY MOSLEY.

(Filed 5 January, 1938.)

Criminal Law § 77e: Homicide § 28 — Case remanded for correction of record to show proper verdict of jury in this homicide prosecution.

The record disclosed that the jury, in this homicide prosecution, returned a verdict simply of “guilty,” and in settling the case on appeal the trial court found that the clerk inadvertently failed to record the question by the court, “Guilty of what?” and the answer by the jury, “Guilty of murder in the first degree.” It did not appear that the judge’s findings were made in open court and in the presence of the defendant, or that the record was corrected to speak the truth. Held,: The case is remanded on motion of the State for a correction of the record.

Appeal by defendant from Ear ding, J., at May Term, 1937, of Forsyth.

Criminal prosecution tried upon indictment charging the defendant with the murder of Clarence Black.

Verdict: Guilty.

Judgment: Death by asphyxiation.

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

Phin Eorton, Jr., John 0. Wallace, and Richmond Rucker for defendant, appellant.

*767'WiNBORNE, J.

Tbe record on appeal discloses tbat-tbe verdict as recorded is simply “Guilty.” However, in settling tbe ease on appeal, tbe judge below finds as facts tbat when tbe jury announced its verdict of guilty tbe court said to tbe jury, “Guilty of what?” Tbat tbe jurors answered for tbeir verdict: “Guilty of murder in tbe first degree,” and tbat tbe clerk in writing tbe minutes inadvertently left out tbe said question and answer. Nevertheless it does not appear tbat tbe said findings of fact were made in open court, tbat tbe defendant was present in person, or tbat the records have been corrected to speak tbe truth.

Motion of tbe State to remand tbe cause for correction of tbe record will be allowed in accordance with S. v. Brown, 203 N. C., 513, 166 S. E., 396.

Remanded.