#### STATE OF NORTH CAROLINA v. JAMES E. JOHNSON, JR., ALBERT S. KILLINGSWORTH and wife, ELIZABETH E. KILLINGSWORTH

No. 87

(Filed 30 December 1974)

Appeal and Error § 46— equally divided Court — judgment affirmed — no precedent

Where one member of the Supreme Court did not participate in the hearing and the remaining six justices are equally divided, the judgment of the superior court is affirmed without becoming a precedent.

Justice Moore did not participate in the consideration and decision of this case.

Appeal by respondents from *Bailey, J.,*21 May 1973 Special Civil. Session of the Superior Court of New Hanover, certified *332under G.S. 7A-31 for review by the Supreme Court prior to determination by the Court of Appeals, docketed and argued as case No. 1 at' the Spring Term, 1974.

This proceeding was instituted by the State on the 28 June 1968 under N. C. Gen. Stats., Ch. 146, Art. 6 (1964 and Supp. 1971), in the manner prescribed by Ch. 136, Art. 9, to condemn 268.5 acres of land owned by respondents Johnson and Killings-worth. The purpose of the condemnation is to preserve the remains and relics of Confederate Fort Fisher and the approaches thereto.

At the 8 November 1971 Session of New Hanover, all other questions having been resolved, the sole issue for trial was the fair market value of the land on 28 June 1968, the date of the taking. The jury answered the issue, “$1,262,500.00.” Upon the State’s appeal from the judgment entered upon the verdict the Supreme Court found error and ordered a new trial. *State v. Johnson,*282 N.C. 1, 191 S.E. 2d 641 (1972). Upon the retrial before Judge James H. Pou Bailey at the 21 May 1972 Session the jury answered the issue “$617,000.00.”

From the judgment entered upon the verdict respondents appealed, assigning errors in the admission and exclusion of evidence and in certain comments which Judge Bailey made to counsel during the course of the trial. This Court granted certiorari for initial appellate review.

*Robert Morgan, Attorney General; T. Buie Costen, Assistant Attorney General; and Thomas M. Ringer, Jr., Associate Attorney, for the State.*

*Marshall, Williams, Gorham & Brawley by Alan A. Marshall and Lonnie B. Williams for respondent appellants.*

Per Curiam.

Justice Dan K. Moore, having been the Governor of North Carolina at the time the State’s decision to condemn respondents’ property was made and this proceeding instituted, did not sit when the two prior appeals in this case were heard. *See State v. Johnson,*278 N.C. 126, 179 S.E. 2d 371 (1971) ; *State v. Johnson,*282 N.C. 1, 191 S.E. 2d 641 (1972). He does not sib in this appeal. The remaining six justices being equally divided in opinion as to whether prejudicial error was committed in the trial below, the judgment of the Superior Court stands affirmed *333in accordance with the usual practice in such cases and decides this case without becoming a precedent. *Parrish v. Publishing Co.,*271 N.C. 711, 157 S.E. 2d 334 (1967) ; *Burke v. R. R.,*257 N.C. 683, 127 S.E. 2d 281 (1962) ; *State v. Smith,*243 N.C. 172, 90 S.E. 2d 328 (1965) ; *James v. Rogers,*231 N.C. 668, 58 S.E. 2d 640 (1950) ; *Parsons v. Board of Education,*200 N.C. 88, 156 S.E. 243 (1930) ; *Hillsboro v. Bank,*191 N.C. 828, 132 S.E. 657 (1926) ; *McCarter v. Railway Company,*187 N.C. 863, 123 S.E. 88 (1924) ; 1 N. C. Index 2d, *Appeal and Error*§§ 46, 64 (1967).

Affirmed.

Justice Moore did not participate in the consideration and decision of this case.