#### STATE v. DAVID BROCK.

(Filed 31 October, 1951.)

1. Criminal Daw § 22—

Where, in a prosecution for assault with a deadly weapon, a mistrial is ordered, defendant’s plea of former jeopardy upon the subsequent trial is properly denied.

2. Criminal Daw § 83—

Where 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.

Valentine, J., took no part in the consideration or decision of this case.

*391Appeal by defendant from Harris, J., March Term, 1951, of Edge-combe.

Affirmed.

The defendant was indicted for secret assault on J. D. Wyatt and several others, 16 September, 1949 (G-.S. 14-31).

There was verdict of guilty of assault with a deadly weapon, and from judgment imposing sentence defendant appealed, assigning error in the denial of his plea of former jeopardy and in the admission of certain testimony.

Attorney-General McMullan, Assistant Attorney-General Moody, and Charles G. Powell, Jr., Member of Staff, for the State.

Robert S. Cahoon for defendant, appellant.

Devin, C. J.

This Court is of the opinion unanimously that defendant’s plea of former jeopardy was properly denied. S. v. Dove, 222 N.C. 162, 22 S.E. 2d 231; S. v. Guice, 201 N.C. 761, 161 S.E. 533. But the members of the Court are evenly divided in opinion (Justice Valentine not sitting) whether error in the admission of testimony as to declarations and conduct of Jim Cook in the absence of the defendant was prejudicial requiring a new trial. Hence the judgment of the Superior Court must stand affirmed, without becoming a precedent.

Judgment affirmed.

Yalentine, J., took no part in the consideration or decision of this case.