#### STATE v. ARTHUR DOVE.

(Filed 14 October, 1942.)

1. Criminal Daw § 55—

The ordering- of a mistrial in a case less than capital is a matter of discretion.

2. Criminal Daw § 19—

Where defendant indicted for murder, solicitor’s election to ask for a verdict for murder in the second degree or manslaughter, is equivalent to a nolle prosequi on the capital charge.

*163Appeal by defendant from Harris, J., at May Term, 1942, of IIab-Nett.

Appeal dismissed.

Attorney-General McMullan and Assistant Attorneys-General Patton and Rhodes for the State.

Neil McX. Salmon and 0. L. Guy for defendant.

Per Curiam.

Tbe defendant was indicted for murder. However, at tbe solicitor’s election be was not put on trial for first degree murder but for murder in tbe second degree or manslaughter. This was equivalent to taking a nolle prosequi on tbe capital charge. S. v. Gregory, 203 N. C., 528, 166 S. E., 387. At tbe close of tbe State’s evidence defendant’s motion for judgment as of ndnsuit was denied. Tbe solicitor then moved to be permitted to offer additional testimony. This motion was allowed, and, it appearing that tbe evidence desired was not presently available, tbe court ordered a mistrial, and continued tbe case. Tbe defendant excepted to tbe ruling of tbe trial judge, and appealed to this Court.

Tbe ordering of a mistrial in a case less than capital is a matter in tbe discretion of tbe court. S. v. Johnson, 75 N. C., 123; S. v. Upton, 170 N. C., 769, 87 S. E., 328; S. v. Ellis, 200 N. C., 77, 156 S. E., 157; S. v. Guice, 201 N. C., 761, 161 S. E., 533; S. v. Watson, 209 N. C., 229, 183 S. E., 286: In capital cases only is tbe judge required to find tbe facts and place them on record so that upon a plea of former jeopardy tbe action of 'the court may be reviewed. S. v. Tyson, 138 N. C., 627, 50 S. E., 456; S. v. Beal, 199 N. C., 278 (295), 154 S. E., 604.

It is apparent that tbe appeal is premature and must be dismissed. S. v. Andrews, 166 N. C., 349, 81 S. E., 416; S. v. Ford, 168 N. C., 165, 83 S. E., 831.

Appeal dismissed.