#### STATE v. JOHN FRIDDLE and GLENN PROCTOR.

(Filed 23 May, 1945.)

Appeal and Error § 39e—

Evidence material to the decision on a former trial was not offered: hence exception to the charge on this point was untenable.

Appeal by defendants from Olive, Special Judge, at October Term, 1944, of G-uileord. No error.

*241Tbe defendants were charged witb breaking and entering a store building and witb tbe larceny of a quantity of sugar therefrom. There was verdict of guilty, and from judgment imposing sentence defendants appealed.

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

P. W. Glidewell, Geo. Tounce, and J. Hampton Price for defendants, appellants.

Devin, J.

This case was here at Spring Term, 1943, and is reported in 223 N. C., 258. On that appeal a néw trial was awarded for errors pointed out in tbe opinion written for tbe Court by Justice Barnhill. It was held that defendants’ testimony raised certain questions as to felonious intent which were not properly submitted to tbe jury.

On tbe second trial below tbe defendants did not testify, or offer evidence. There was no evidence on this record, such as appeared in defendants’ testimony on tbe former trial, that an employee of tbe prosecuting witness had authorized tbe removal of tbe sugar. It would seem therefore that tbe exceptions to tbe charge debated in defendants’ brief on this point are without support in the record. In bis charge tbe trial judge correctly instructed tbe jury that before they could convict tbe defendants they were required to find beyond a reasonable doubt not only tbe breaking and entry and asportation of tbe sugar, but also by the same degree of proof that this was done witb intent to steal.

Exceptions noted by defendants to tbe ruling of tbe court on matters of evidence have been abandoned. Rule 28. They were admittedly inconsequential.

In tbe trial we find

No error.