#### STATE v. ARTHUR ROBERTSON.

(Filed 15 June, 1936.)

1. Criminal Law J a—

Insufficiency of the evidence to support the verdict may not be taken advantage of by motion in arrest of judgment, since want of evidence to support the verdict is not an error or defect in the record.

a. Criminal Haw 11—

Where there is plenary evidence of defendant’s guilt of the crime charged, a judgment upon a verdict of guilty of a lesser degree of the crime will not be held for error for want of evidence of guilt of such degree of the crime, the judgment in such case being favorable to defendant.

Appeal by defendant from *Clement, J.,*at January Term, 1936, of RockiNGhaM.

No error.

The defendant was tried on an indictment in which he was charged with burglary in the first degree, as defined by statute, C. S., 4232. He entered a plea of not guilty.

At the trial there was evidence for the State tending to show that the defendant was discovered in the dwelling house of George Stanley and his wife, Mae Stanley, in Rockingham County, some time between 6 and *2677 o’clock p.m., on 5 December, 1935, and tbat be bad entered said dwelling bouse witb tbe felonious intent to steal and carry away certain articles of personal property tben in said dwelling bouse.

There was evidence for tbe State tending to show further tbat tbe defendant bad broken into and entered said dwelling bouse, during tbe nighttime, while tbe same was occupied, witb tbe felonious intent as charged in tbe indictment. An inference was permissible, however, from said evidence tbat at tbe time tbe defendant entered said dwelling bouse, tbe same was unoccupied.

Tbe evidence for tbe State tended to show tbat when tbe defendant was discovered in said dwelling bouse by Mrs. Mae Stanley, upon her return from a visit to a neighbor, be assaulted her, and tbat when she screamed and fired her pistol, be ran from tbe bouse, and tbat as be ran be dropped certain articles of personal property which be bad taken and carried away from said bouse.

Tbe evidence for tbe defendant tended to sustain bis defense tbat at tbe time tbe crime charged in tbe indictment is alleged to have been committed, be was elsewhere. Tbe testimony of tbe defendant to tbat effect was strongly supported by tbe testimony of witnesses for tbe defendant, whose credibility was not impeached.

All tbe evidence was submitted to tbe jury, under a charge by tbe judge, to which there was no exception by tbe defendant.

Tbe jury returned as their verdict: “Guilty of an attempt to commit burglary in tbe second degree.”

Tbe defendant moved- for tbe arrest of judgment on tbe ground tbat there was no evidence at tbe trial tending to support tbe verdict returned by tbe jury. Tbe motion was denied, and tbe defendant excepted.

From judgment tbat be be confined in tbe county jail of Rockingham County for a term of eighteen months, and tbat be be assigned to work under tbe supervision of tbe State Highway and Public Works Commission, tbe defendant appealed to tbe Supreme Court, assigning as error tbe refusal of tbe trial court to allow bis motion for arrest of judgment, and tbe judgment.

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

*Jule McMichael and Sharp & Sharp for defendant.*

Connor, J.

There was no error in the refusal of the trial court to allow defendant’s motion for the arrest of judgment in this action, on the ground that there was no evidence at the trial to support the verdict returned by the jury. In the absence of any error or defect on the face of the record in this action, the motion for the arrest of judgment was *268properly denied. The want of evidence at the trial to support the verdict is not a defect or error in the record, for which the judgment may be arrested. *S. v. McKnight,*196 N. C., 259, 145 S. E., 281.

It may be conceded that all the evidence for the State, if believed by the jury, showed that defendant is guilty of burglary in the second degree, at least, and that there was no evidence tending to show that defendant is guilty only of an attempt to commit burglary in the second degree. It does not follow, however, that the acceptance by the court of the verdict returned by the jury was error prejudicial to the defendant. In *S. v. Smith,*201 N. C., 494, 160 S. E., *577,*it is- said: “A verdict for a lesser degree of the crime charged is logically permissible only when there is evidence tending to support a milder verdict, although there are decisions to the effect that if without supporting evidence a verdict is returned for the lesser offense, it will not be disturbed because it is favorable to the prisoner. *S. v. Ratcliff,*199 N. C., 9, 153 S. E., 605.”

In the instant case, -the defendant does not contend in this Court that he is entitled to a new trial. His contentions that there was error in the refusal of his motion for arrest of the judgment, and in the judgment, cannot be sustained. The judgment is affirmed.

No error.