#### STATE v. JOHN PHILLIPS.

(Filed 19 December, 1947.)

1. False Pretense § 2—

A warrant charging defendant with, obtaining a money advance under promise to do certain work, and with failure to perform the work, without alleging that the advances were obtained with intent to cheat or defraud, is fatally defective. G. S., 14-104.

2. Criminal Law § 56—

Where the warrant upon which defendant is tried is fatally defective, motion in arrest of judgment will be allowed even though interposed for the first time in the Supreme Court on appeal.

Appeal by defendant from Bone, J., at July Term, 1947, of Durham. Criminal prosecution on warrant charging tbe defendant with unlawfully obtaining $27.81, as money advanced, “under promise to do certain work for Robert Dunn and did then and there fail and refuse to do tbe work or any part of it with tbe exception of one day’s work.”

Tbe case was tried in tbe Recorder’s Court and de novo on defendant’s appeal to tbe Superior Court.

Verdict: “Guilty as charged in tbe warrant.”

Judgment: Thirty days on tbe roads.

Tbe defendant appeals, assigning errors.

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

J. Grover Bee for defendant.

Stacy, C. J.

Upon tbe call of tbe case here tbe defendant lodged a motion in arrest of judgment for that it is not alleged tbe defendant *447obtained tbe advances “witb intent to cheat or defraud.” G. S.¿ 14-104. Tbe defect is fatal, and it appears on tbe face of tbe record. S. v. Foster, ante, 72; S. v. Norman, 110 N. C., 484, 14 S. E., 968. Tbe warrant charges no offense.

Tbe motion is well interposed and must be allowed. S. v. Morgan, 226 N. C., 414, 38 S. E. (2d), 166.

Judgment arrested.