#### STATE v. HOWARD PETERSON.

(Filed 27 November, 1946.)

Criminal Daw § 85a—

Where on a former appeal the Supreme Court holds that the evidence was sufficient to be submitted to the jury, defendant’s motion to nonsuit upon substantially the same evidence in the second trial is properly denied.

Appeal by defendant from Thompson, J., at August Term, 1946, of SampsoN. No error.

The defendant was convicted of manslaughter, and from judgment imposing sentence appealed.

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

J. Faison Thomson and Jeff D. Johnson for defendant.

Per Curiam.

This case was here at Fall Term, 1945, and is reported in 225 N. C., 540, where the material facts are stated. The former appeal was from judgment pronounced on verdict of guilty of murder in the second degree. This Court held there was evidence sufficient to carry the case to the jury, but ordered a new trial for error in the judge’s charge.

On the trial from which comes the present appeal the jury again found the defendant guilty of manslaughter. The evidence for the State in both trials was substantially the same. Hence motion for judgment of nonsuit was properly denied. ¥e have examined the other exceptions now brought forward in the assignments of error, both as to the admission of testimony, and as to the charge, and conclude that none of them can be sustained. Ir. the trial we find

No error.