#### STATE v. ALVIN C. CORNWELL.

(Filed 14 January, 1959.)

Appeal by defendant from Pless, J.} at July 1958 Regular Criminal Term, of GastoN.

Criminal prosecution (as shown by the record and by certificate of Clerk of Superior Court of Gaston County in response to order upon suggestion of diminution of record) upon three bills of indictment, originating in warrants issued out of court of justice of the peace, hearing waived and defendant bound over to Superior Court, and there cases consolidated for trial, charging defendant with several offenses as follows:

I. Number 1187 on two counits of operating a motor vehicle upon a public road, street or highway of Gaston County (1) while under the influence of intoxicating liquors; and (2) while under the influence of bitters, morphine or narcotic drugs. Tried only on first count.

II. Number 1188 for assault upon one R. E. Shaney with a deadly weapon, to wit a certain knife; and

III. Number 1189 for resisting arrest.

Defendant pleaded to each charge: Not guilty.

Verdict: In #1187— “Guilty of operating an automobile under the influence.”

In #1188— Not guilty — and

In #1189— Guilty.

Judgment: In #1187 — • Confinement in common jail of Gaston County for a term of not less than eighteen months nor more than twenty-four months, assigned to work under the supervision of the State Prison Department. Defendant excepts.

In #1189— Confinement in common jail of Gaston County “for a term of two years, to be assigned to work under the supervision o-f the State Prison Department. Service of this sentence to begin at expiration of the prison sentence imposed in case #1187, and is to be served separately therefrom and in addition thereto. This prison sentence is suspended with consent of defendant for a period of five years upon the following conditions: (1) That the defendant be of good behavior and not in any wise violate the law, and (2) That he not operate a motor vehicle upon the public highways for a period of five years, and not then unless and until he shall have obtained a valid driver’s license. Otherwise, capias to issue to put the prison sentence into effect at any subsequent term of the court.”

Defendant appeals to Supreme Court and assigns error.

*423 Attorney General Seawell, Assistant Attorney General Harry W. McGalliard, for the State.

Mullen, Holland & Cooke for defendant, appellant.

PeR Cueiam.

Careful consideration of all exceptions presented on this appeal fails to disclose error of such prejudicial nature as to require a new trial. The matters to which defendant excepts are in substantial accord with decisions of this Court.

Hence in the trial below the Court holds there is

No Error.