#### STATE v. TED TERRELL.

(Filed 19 October, 1938.)

Appeal and Error § 38—

When the Supreme Court is evenly divided in opinion, one Justice not sitting, the judgment of the lower court will be affirmed without becoming a precedent.

Appeal by defendant from Williams, J., at May Term, 1938, of WarreN.

Affirmed.

This is a criminal action in which, the defendant was tried under a bill of indictment charging him with the murder of one Andrew Knight. The defendant was first tried at the May Term, 1937, of Warren, and was convicted of murder in the second degree. On appeal to this Court a new trial was ordered. 8. v. Terrell, 212 N. 0., 145. When the cause again came on for trial in the court below the defendant was again convicted of murder in the second degree. From judgment pronounced thereon the defendant appealed.

Attorney-General McMullan and Assistant Attorneys-General Bruton and Wettach for the State.

Banzet ■& Banzet, John Kerr, Jr., and Yarborough & Yarborough for defendant, appellant.

Per Curiam.

The Court being evenly divided in opinion, Schenck, J., not sitting, as to whether harmful error was committed in the trial of the defendant, the judgment of the Superior Court is affirmed and stands as the decision of this action without becoming a precedent.

Affirmed.