State v. . Robertson

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 *268 properly 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.