#### STATE v. HOMER MYERS.

(Filed 4 January, 1939.)

1. Homicide §§ 2, 25—

Evidence that one defendant killed deceased while attempting to rob him, and that during the commission of the crime appealing defendant waited in an automobile a short distance off to speed his codefendant away when he had completed the robbery, is sufficient to overrule appealing defendant’s motion to nonsuit in a prosecution for murder.

2. Criminal Law § 48b: Constitutional Law § 28 — Evidence admitted against one defendant only may not be considered against the other without giving him opportunity to cross-examine witnesses in regard thei’eto.

Evidence of acts and declarations of one defendant was admitted in evidence against him alone, the court instructing the jury that it should not be considered against the appealing defendant. Later evidence1 tending to establish a conspiracy between defendants was introduced. The court gave no intimation it would change its instructions as to the restricted evidence until the charge, when the court instructed the jury that evidence of acts and declarations of his codefendant prior to the commission of the crime might be considered against appealing defendant. *653
      *Held:*Appealing defendant was entitled to be informed that the evidence restricted in its admission would be admitted against him in time to give him opportunity to cross-examine the witnesses in regard thereto and conduct his defense in accord therewith, and he is entitled to a new trial for the denial of this right.

Appeal by tbe defendant from *Bivens, J.,*at June Term, 1938, of Gtjileobd.

New trial.

*Attorney-General McMullan and Assistant Attorneys-General Bruton and Wettach for the State.*

*Geo. A. 7ounce and Adam Younce for defendant, appellant.*

ScheNck, J".

Tbe appellant, Homer Myers, was tried witb a co-defendant, Jerry Clark, upon a bill of indictment charging them witb tbe murder of one 0. D. (Dock) Bovender. Tbe jury returned a verdict of guilty of murder in tbe second degree as to each of tbe defendants. From judgment of imprisonment in Central Prison, tbe defendant Myers appealed, assigning errors. Tbe codefendant Clark did not perfect an appeal.

Tbe State offered evidence tending to show that tbe fatal shot that killed tbe deceased was fired from a pistol in tbe bands of Clark while on tbe porch of tbe residence of tbe deceased, in an attempt to rob tbe deceased in tbe early morning of Sunday, 5 June, 1938; and that during tbe struggle between tbe deceased and Clark tbe appellant Myers was in an automobile a short distance off waiting to speed Clark away when be bad completed tbe robbery.

Tbe State offered, as a witness, Mrs. Bovender, wife of tbe deceased, who testified that in tbe late afternoon of Saturday, 4 June, 1938, preceding tbe early morning of tbe Sunday on which her husband was shot, Clark, tbe codefendant of tbe appellant, came to tbe borne of her and tbe deceased on Walker Avenue and inquired as to whether tbe deceased lived there, stating that be bad some business witb him. Tbe State also offered several witnesses who lived on Walker Avenue, who testified that tbe codefendant' Clark, on tbe Saturday afternoon preceding tbe morning of tbe shooting, came to their homes and inquired where Bovender, tbe deceased, lived.

As to all of this testimony, as it was given, tbe court entered tbe instruction : Gentlemen of tbe jury, do not consider this evidence against tbe defendant Myers, but consider it only against tbe defendant Clark.

Tbe State also offered evidence tending to show that on Wednesday evening preceding tbe shooting on Sunday morning tbe codefendant Clark phoned “a girl friend” in Winston-Salem, and told her to come to Greensboro on tbe bus, and that Clark met her on tbe nine o’clock bus *654in Greensboro; and further, on Saturday evening preceding the morning of the shooting, Clark phoned the “girl friend” that he would not come to "Winston-Salem that night but would come the following Sunday.

The court likewise instructed the jury not to consider this evidence against the appellant Myers and to consider it only against the eodefend-ant Clark.

Subsequently, the State offered as a witness one Jean Helms, who testified that she lived in Winston-Salem and that she received the phone messages from Clark on Wednesday and Saturday preceding the night of the shooting on the morning of Sunday, 5 June, and that she came to Greensboro on the bus on the Wednesday night and returned Friday morning. This witness further testified that some time before this she had heard the appellant Myers and eodefendant Clark discussing robbing Bovender.

When the State had produced its evidence and rested its case, the defendants moved for a judgment of nonsuit, the motion was refused and defendants excepted, and announced that they would introduce no evidence and again moved for judgment of nonsuit, which motion was refused and defendants excepted. C. S., 4643. In the refusal to grant the motions for judgment of nonsnit we see no error.

The court gave no intimation that it would change its instructions as to certain evidence being competent as to eodefendant Clark and not competent as to appellant Myers, and the original rulings and instructions remain in the record.

The argument followed the close of the evidence, and the charge followed the argument, wherein the court instructed the jury, *inter alia,*“During the course and progress of this trial, gentlemen of the jury, certain evidence was offered in your.hearing to which objection was made by counsel'for defendants in this case and the court ruled upon those objections and instructed you how to consider the evidence. The court again instructs you, gentlemen of the jury, that any act or declaration of either of these defendants made before the hour of death' — strike that out — shooting of Mr. Bovender, if the State has satisfied you beyond a reasonable doubt that a conspiracy existed, are competent against each of those defendants but no act or declaration by either of these defendants after the execution of the common design, if the State has satisfied you beyond a reasonable doubt that they had a common design in robbing Mr. Bovender and he lost his life thereby, any act or declaration thereafter by either of the defendants would not be competent against the other defendant, but would only be competent against the defendant who did the act or made the declaration.”

The quoted portion of the charge is made the basis of an exceptive assignment of error, and we are constrained to hold that such assignment should be sustained.

*655When tbe court instructed tbe jury not to consider certain evidence against tbe appellant, be was foreclosed from cross-examining tbe witnesses relative to tbe subject matter thereof, and may likewise bave been influenced thereby to refrain from offering evidence in rebuttal thereof.

When tbe evidence tending to establish a conspiracy bad been offered and thereby bad rendered tbe theretofore incompetent evidence competent against tbe appellant, be was then entitled to bave been informed that such evidence would be admitted against him, so as to enable him to conduct bis defense in accord therewith. This could not be done after tbe charge bad been delivered to tbe jury wherein tbe first intimation of a change in tbe ruling on tbe competency of tbe evidence involved was given. *S. v. Love,*187 N. C., 32.

For tbe error assigned there must be a

New trial.