#### STATE v. JACK RICE.

(Filed 23 March, 1932.)

Criminal Raw I f — Consolidation of actions after beginning of trial held prejudicial and reversible error in this case.

Upon the trial under an indictment charging the prisoner with murder of M. in which a conviction of first degree murder is not sought, it is reversible error to the defendant’s prejudice for the trial court upon his own motion, after a substantial part of the evidence had been introduced *412to consolidate tlie action with another action under a separate indictment charging the prisoner with an assault with a deadly weapon upon D. with intent to kill, the prisoner being- afforded no opportunity to pass upon the impartiality of the jury upon the assault charge or an opportunity to plead to the charge, O. S., 4622.

Oeiminal action, before *Stach, J.,*at August Term, 1931, of Madison.

The defendant was indicted in two separate indictments. The first indictment charged him with the murder of McKinley Shelton, and the second charged an assault upon Delbert Shelton with a deadly weapon with intent to kill. Before the jury was empaneled the solicitor am nounced in open court that he would not ask for conviction for murder in the first degree upon the first bill of indictment but for murder in the second degree, or manslaughter, or not guilty as the evidence might warrant. The defendant was placed on trial on the first bill and pleaded not guilty. Whereupon a jury was selected and empaneled. Thereupon the State offered testimony. Near the conclusion of the testimony of the first witness for the State the trial judge made the following declaration from the bench: *“I*will consolidate these two bills to my own motion. Make this entry: The court consolidates the two bills and will try them at the same time.” The defendant excepted to the order consolidating said bills of indictment.

The defendant was convicted of manslaughter, and also of assault with a deadly weapon with intent to kill. He was sentenced to the State’s prison for a period of not less than ten nor more than fifteen years upon the murder indictment and for not less than seven nor more than ten years in the indictment charging assault with a deadly weapon. The latter judgment, however, was to be suspended if the defendant should pay the sum of $1,000, one-half to the school fund and the other half to the State’s witness, Delbert Shelton.

From judgment pronounced, defendant appealed.

*Attorney-General Brummitt and Assistant Attorney-General Seawell for the State.*

*Guy V. Roberts, J. Coleman Ramsey and John H. McElroy for defendant.*

Brogden, J.

The defendant was charged with a capital felony. When the case was called for trial the solicitor announced that he would not press the charge for capital felony but would ask for a verdict for murder in the second degree or manslaughter. The defendant pleaded not guilty and a jury was sworn and empaneled. The State began to offer testimony and introduced a witness named Delbert Shelton, who *413proceeded to testify as to tbe events resulting in tbe killing of McKinley Sbelton by tbe defendant. After tbe first witness for tbe State bad practically completed bis direct examination tbe trial judge, of bis own motion, brought into- tbe case by consolidation another indictment charging tbe defendant with assault with a deadly weapon with intent to kill, committed by tbe defendant against Delbert Sbelton, tbe State’s witness. Hence tbe question of law arises: Did tbe trial judge have power to consolidate tbe indictments under tbe circumstances?

C. S., 4622, regulates tbe consolidation of criminal actions. This statute has been construed in many decisions of this Court. In *S. v. Combs,*200 N. C., 671, 158 S. E., 252, it is written: “Tbe court is expressly authorized by statute in this State to order tbe consolidation for trial of two or more indictments in which tbe defendant or defendants are charged with crimes of tbe same class, which are so connected in time or place as that evidence at tbe trial of one of tbe indictments will be competent and admissible at tbe trial of tbe others.” *S. v. Lewis,*185 N. C., 640, 116 S. E., 259; *S. v. Smith,*201 N. C., 494; *S. v. Malpass,*189 N. C., 349, 127 S. E., 248. Moreover, it has been generally held that if separate offenses are charged in tbe same warrant or indictment, they are to be considered as separate counts. *S. v. Jarrett,*189 N. C., 516, 127 S. E., 590.

Without debating tbe question as to whether tbe indictments could have properly been consolidated at tbe beginning of tbe trial, it is obvious that tbe consolidation thereof, pending tbe taking of testimony on tbe indictment for murder, was prejudicial to tbe defendant. He was afforded no opportunity to pass upon tbe impartiality of tbe jury upon tbe assault charge, nor bad be been permitted to plead to such charge. These principles are fundamental and tbe failure to apply them in tbe case at bar entitles tbe defendant to a new trial. *S. v. Jackson,*82 N. C., 565; *S. v. Cunningham,*94 N. C., 824.

New trial.