#### STATE v. JAMES E. PEURIFOY.

(Filed 14 October, 1959.)

1. Griminal Law § 18—

The references in the judge’s charge to the defendant’s trial in and appeal from the Recorder’s Court, held, not to have impaired in any way defendant’s right to a trial de novo in the Superior Court uninfluenced by the trial in the Recorder’s Court.

2. Automobiles § 74—

In this prosecution for operating a motor vehicle upon a public highway of this State while under the influence of intoxicating liquor, the court’s definition of “under the influence” held without error.

3. Criminal Law § 160—

The burden is upon defendant to show prejudicial error.

Higgins, J., not sitting.

Appeal by defendant from Parker, J., April, 1959 Criminal Term, of New HanoveR.

This ease, upon appeal from the Recorder’s Court of New Hanover County, was tried de novo in Superior Court. The warrant charged that defendant operated a vehicle upon a public highway of North Carolina while under influence of intoxicating liquor or narcotic drugs. Defendant entered plea of not guilty and a jury was chosen and em-panelled. Evidence was offered both by the State and defendant The jury returned a verdict of guilty.

From judgment imposing a prison sentence defendant appealed and assigned errors.

Attorney General Seawell and Assistant Attorney General McGal-liard for the State.

William Joslin for defendant, appellant.

PER Curiam.

The case was fairly and fully tried. The references in the evidence and the judge’s charge to trial in and appeal from Recorder’s Court impaired in no way defendant’s right to a trial de novo in Superior Court uninfluenced by the trial in Recorder’s Court. S. v. Williamson, 238 N.C. 652, 655, 78 S.E. 2d 763. Indeed, such references were favorable to defendant. The judge’s definition of the expression, “under the influence,” is in substantial conformity to that given by this Court in S. v. Carroll, 226 N.C. 237, 241, 37 S.E. 2d 688. The defendant has failed to show prejudicial error. S. v. Poolos, 241 N.C. 382, 383, 85 S.E. 2d 342.

No error.

Higgins J., not sitting.