When this case was before us, 66 N. C. 120, ■the motion for judgment of death was disallowed, on the ground that it could not be seen by the record, that the prisoner had been charged and convicted under the Act of 1871. On the argument of the present motion, it was conceded by the Attorney General, that the motion for judgment — confinement in the penitentiary, could not be allowed on the ground that it cannot be seen by the record, that the prisoner had been conyicted under the Act of 1869, and so no judgment can be pronounced, unless the plea (as it is termed) against the further prosecution of the indictment, hied on the part of the prisoner by hiscoun•sel, in which the fact is set out, that upon the trial Mason testified, that, the house was burnt, on the 1st day of August, 1871, which fact was admitted by the Solicitor for the State, has the legal effect to aid the indictment, and show that the prisoner was charged and convicted for a violation of the Act of 1871-, and thus to remove the ambiguity in respect to whether the prisoner was charged and convicted for a violation of the Act 1871, or of the Act 1869. In which case it is insisted that judgment of death shall now be pronounced, as upon a conviction, under the Act 1871, although such judgment was not entered on tire record, as it then appeared. No such effect can be allowed to the action of counsel. A record cannot be aided by matter in pais. Sufficient matter must appear on the record to enable the Court to proceed to judgment. Ilev. Code, Clu 35, Sec. 14.
There is no error.
Per Curiam. Judgment affirmed.