#### STATE v. JAMES FOSTER, DOBE POWELL, JOE HOLLAND, and CHARLIE COMBS.

(Filed 15 October, 1947.)

1. Criminal Law §§ 17f, 83—

Where, upon defendants’ plea in amnesty, the court denies the motion without findings as to some of the material facts alleged as the basis for the motion, judgment will be vacated and the cause remanded for further proceedings. The determination of the motion upon the subsequent hearing is within the discretionary authority of the court. G. S., S-55.

3. Criminal Law § 56—

Motions in arrest of judgment in criminal actions are allowable only when some error or fatal defect appears on the face of the record.

Appeal by defendants and movents from *Sinlc, J.,*at March Term, 1947, of Wilkes.

Criminal prosecution on indictment charging the defendants with gambling, *i.e.,*playing poker at which money was bet.

It appears from facts set out in brief of defendants that on 5 July, 1946, at about 1:30 a.m., while the defendants were playing poker in the kitchen of the home of James Foster, a machine gun was thrust through the screen door, and the defendants were commanded to keep their hands on the table. Two masked men, one with a machine gun and the other with a pistol, then entered the room, forced the defendants to stand with their faces to the wall, and each was robbed of the money he had on his person. The money on the table was also taken. James Foster was then marched into another room and forced to open his safe, which contained approximately $19,000.00. In all, the robbers got about $20,000.00.

At the August Term, 1946, Wilkes Superior Court, indictments were returned by the grand jury against Carl Keaton, Cola Keaton and Calvin Spillman, charging them with robbery, and against the defendants herein, James Foster, Dobe Powell, Charlie Combs and Joe Holland (together with Calvin Spillman), charging them with gambling. (Calvin Spillman was physically unable to attend court and has not been tried on either indictment.)

The defendants, and each of them, pleaded guilty of gambling.

Judgment as to each defendant: 12 months in jail “and assigned to work on the roads at hard labor as provided by law, and pay the costs.”

Thereupon, at the same term of court, each of the defendants filed motion in arrest of judgment and proffered a plea in amnesty, based on the following allegations:

1. On the bill charging Carl Keaton, *et al.,*with robbery from the person with firearms, which was sent to the grand jury at the August Term, *731946, these defendants were listed as witnesses, and two of them, James Foster and Dobe Powell, actually appeared and disclosed to the grand jury the game of chance they were engaged in playing at the time of the holdup and robbery. This was with the full knowledge and consent of the solicitor.

2. The same grand jury returned a true bill against these defendants for gambling.

3. These defendants were advised that, as a matter of strategy, it would materially assist in obtaining a conviction in the robbery case, if the two indictments were consolidated for trial and pleas of guilty entered by the defendants in the gambling case. Whereupon, the consolidation being “agreed upon and approved by the court,” these defendants entered pleas of guilty to gambling prior to the impaneling of the jury in the robbery case, said pleas being entered “for the purpose of aiding and assisting the Solicitor for the State of North Carolina to obtain a conviction in the robbery case.”

4. These defendants were' used by the State as witnesses in the robbery case, and convictions were obtained therein on their testimony. Indeed, the consolidation and trial of the robbery case with one -in which there was nothing to try could have been only for the purpose of aiding in the prosecution of the robbers.

5. These defendants are advised and believe that the solicitor for the State was put to an election of either prosecuting them for gambling or using them as witnesses in the robbery case, in which latter event they were pardoned by operation of the statute. G. S., 8-55. Therefore, they pray for relief from the judgment rendered against them.

Upon consideration of the motions in arrest and pleas in amnesty, the court found certain facts — omitting, however, to make any findings in respect of the matters alleged in paragraphs 1 and 3 above, except that the consolidation was with the court’s approval — and being of opinion that the defendants were not entitled to the relief sought, denied the motions, from which rulings, the defendants appeal, assigning errors.

*Attorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State.*

*Hayes & Hayes and W. H. McBlwee for defendants.*

Stacy, C. J.

It seems to be conceded that the principal question here sought to be presented is one of first impression in this jurisdiction. However, as no determinations were made by the court below in respect of the material allegations set out in paragraphs 1 and 3 above, we are *74disposed to vacate tbe rulings and remand tbe case for further proceedings as to justice appertains and tbe rights of tbe parties may require.

*We*refrain from discussing tbe matters in advance of the further bearing, which may be confiped to tbe pleas in amnesty. Motions in arrest of judgment in criminal actions are allowable only when some error or fatal defect appears on tbe face of tbe record. *S. v.*Deal, 207 N. C., 448, 177 S. E., 332; *S. v. Satterfield,*207 N. C., 118, 176 S. E., 466; *S. v. Bittings,*206 N. C., 798, 175 S. E., 299; *S. v. Grace,*196 N. C., 280, 145 S. E., 399; *S. v. McKnight,*196 N. C., 259, 145 S. E., 281; *S. v. Mitchem, 188*N. C., 608, 125 S. E., 190. No such error is apparent on tbe face of tbe present record.

Needless to add that when tbe matters are reached again in the Superior Court, tbe judge bearing tbe motions will be vested with tbe same discretionary authority as tbe judge at tbe trial term who originally imposed tbe sentences.

Error and remanded.