State v. Swan, 209 N.C. 836 (1936)

Jan. 22, 1936 · Supreme Court of North Carolina

209 N.C. 836

STATE v. W. J. SWAN.

(Filed 22 January, 1936.)

Appeal and Error J d—

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.

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

Appeal by defendant from Prizzelle, J., at November Term, 1935, of Pamlico.

Affirmed.

The defendant was convicted on four counts contained in two bills of indictment charging him, while an officer of a bank, with receiving deposits, or permitting deposits to be received, when he knew the bank was insolvent, and with making and publishing certain false reports as to the financial condition of the bank. Erom judgment pronounced upon the verdict, the defendant appealed.

Attorney-General Brummitt and Assistant Attorney-General Seawell for the State.

W. B. Rodman, Z. V. Rawls, T. D. Warren, and L. I. Moore for defendant, appellant.

Per Curiam.

This casé was argued at the Pali Term, 1934, and, after being considered in conference, was assigned to Justice Brogden for detailed investigation and report. Justice Brogden was taken ill soon thereafter and after several months died without submitting an opinion. Since his death the remaining members of the Court who heard the argument find themselves evenly divided upon the question of awarding the defendant a new trial.

In accord with the established practice, the Court being evenly divided in opinion, Justice Devin not sitting, the judgment of the Superior Court is affirmed and stands as the decision in this case without becoming a precedent. Nebel v. Nebel, 201 N. C., 840, and cases there cited.

Affirmed.

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