#### STATE v. CALVIN SPENCER SMITH.

(Filed 23 November, 1955.)

Appeal and Error § 38—

Where the Supreme Court is evenly divided in opinion, the decision of the lower court will be affirmed without becoming a precedent.

Appeal by defendant from Rudisill, J., at February-March Criminal Term, 1955, of Caldwell.

Criminal prosecution upon a warrant issued out of Recorder’s Court of Caldwell County, on affidavit charging that defendant did on 3 July, 1954, operate a motor vehicle upon the public highways of the State of North Carolina after operator’s license being revoked, heard on original warrant in Superior Court on appeal thereto by defendant from judgment of Judge of said Recorder’s Court dated 21 January, 1955.

Plea: Not guilty.

Verdict: Guilty as charged in said warrant.

Judgment: Pronounced.

Defendant excepts thereto and appeals therefrom to the Supreme Court, and assigns error.

Attorney-General Rodman and Assistant Attorney-General Beh-rends, Jr., for the State.

Fate J. Beal and Marshall E. Cline for Defendant Appellant.

PER CuRiAM.

The Court being evenly divided in opinion as to whether'error prejudicial to defendant is shown in the record on this appeal, Higgins, J., not sitting, the judgment of the Superior Court is affirmed without becoming a precedent. Cole v. R. R., 211 N.C. 591, 191 S.E. 353; Allen v. Ins. Co., 211 N.C. 736, 190 S.E. 735, and cases cited. See also Johnston v. Paper Co., 214 N.C. 828, 199 S.E. 20; Toxey v. Meggs, 216 N.C. 798, 4 S.E. 2d 513; Howard v. Coach Co., 216 N.C. 799, 4 S.E. 2d 616; Whitehurst v. Anderson, 228 N.C. 787, 44 S.E. 2d 358; S. v. Brown, 242 N.C. 602, 89 S.E. 2d 157; Refrigerator Co. v. Davenport, 242 N.C. 603, 89 S.E. 2d 153; Railway v. Railway, ante, 110, and numerous others.

Affirmed.