State v. McHone

90 S.E.2d 539 (1955)

243 N.C. 235

STATE v. Foy McHONE

No. 650.

Supreme Court of North Carolina.

December 14, 1955.

*540 Frank Freeman, Dobson, J. N. Freeman, Mount Airy, for defendant-appellant.

Atty. Gen. Wm. Rodman, Jr., Asst. Atty. Gen. Claude L. Love, for the State.

WINBORNE, Justice.

Upon consideration thereof the various assignments of error based upon exceptions appearing in the record and case on appeal are found to be without merit.

1. As to the exception to denial of defendant's plea in abatement: The record discloses that the plea was not made in apt time. Decisions of this Court hold that a plea in abatement of a defendant in a criminal prosecution comes too late when made after his plea of not guilty,and cannot be considered. See State v. Hooker, 186 N.C. 761, 120 S.E. 449, citing State v. Oliver, 186 N.C. 329, 119 S.E. 370. See also State v. Doughtie, 238 N.C. 228, 77 S.E.2d 642.

If, however, the plea had been timely, it is appropriate to say that decision here would have been controlled by that in State v. McHone, No. 654, N.C., 90 S.E.2d 536.

*541 2. Exception to denial of defendant's motion in arrest of judgment is controlled by the decision in State v. McHone, No. 654, 90 S.E.2d 536.

3. Taking the evidence adduced upon the trial in Superior Court in the light most favorable to the State, this Court is of opinion and holds that it is sufficient to take the case to the jury, and to support the verdict rendered in each case. Hence the motions of defendant for judgment as of nonsuit were properly overruled.

4. Other assignments of error require no express consideration.

Therefore in the judgment from which appeal is taken, we find

No error.