The prisoners, Johnson and Pittman, appeal from a conviction of murder in the second degree. The only question presented is as to whether there was any evidence as to them to go to the jury. The Judge ordered the evidence to be set up as' a part of the case on appeal, but by the almost criminal carelessness of some one, it has been, lost, and the county of Lenoir will be put to the expense of another trial, which must be granted.
Ritter v. Grimm,
The case on appeal does not clearly show that the exception that there was not sufficient evidence to go to the jury was taken before verdict. If it was not, the exception could not be considered, and the failure to send up the evidence would be immaterial, so far as the appeal is concerned. This has been well settled.
State v. Harris,
New trial.