State v. Howell

135 S.E.2d 625 (1964)

261 N.C. 657

STATE of North Carolina v. William P. HOWELL.

No. 439.

Supreme Court of North Carolina.

April 15, 1964.

T. W. Bruton, Atty. Gen., Harry W. McGalliard, Deputy Atty. Gen., for the State.

Earle H. Purser, Raleigh, for defendant.

PER CURIAM.

The defendant assigns as error the failure of the court below to sustain his motion for judgment as of nonsuit made at the close of the State's evidence and not renewed at the close of all the evidence.

The defendant testified in his own behalf and introduced other evidence.

The failure of the defendant to renew his motion at the close of all the evidence constituted a waiver of his right to insist upon his first motion and it is not subject to review in this Court. G.S. § 15-173; State v. Hayes, 187 N.C. 490, 122 S.E. 13; State v. Chapman, 221 N.C. 157, 19 S.E.2d 250; State v. Epps, 223 N.C. 741, 28 S.E.2d 219; State v. Leggett, 255 N.C. 358, 121 S.E.2d 533. However, the State's evidence adduced in the trial below was sufficient to carry the case to the jury. Furthermore, the defendant's own testimony was sufficient to support the verdict.

The defendant assigns as error the refusal of the court below to sustain his *626 motion in arrest of judgment on the ground that the name of the defendant did not appear in the affidavit upon which the warrant of arrest was issued and which is partly in these words: "These are therefore to command you forthwith to apprehend the said William P. Howell * * * to answer the above charge set forth in the affidavit, and be dealt with according to law." This assignment of error is overruled on authority of State v. Poythress, 174 N.C. 809, 93 S.E. 919, and State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133.

The rulings of the court below from which appeal was taken are

Affirmed.