Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Charles G. Powell, Jr., Member of Staff, Raleigh, for the State.

Robert S. Cahoon, Atlanta, Ga., for defendant, appellant.

DEVIN, Chief Justice.

This court is of the opinion unanimously that defendant's plea of former jeopardy was properly denied. State v. Dove, 222 N.C. 162, 22 S.E.2d 231; State v. Guice, 201 N.C. 761, 161 S.E. 533. But the members of the court are evenly divided in opinion (Justice VALENTINE not sitting) whether error in the admission of *283 testimony as to declarations and conduct of Jim Cook in the absence of the defendant was prejudicial requiring a new trial. Hence the judgment of the Superior Court must stand affirmed, without becoming a precedent.

Judgment affirmed.

VALENTINE, J., took no part in the consideration or decision of this case.

BARNHILL and JOHNSON, JJ., dissent for the reason they are of the opinion the defendant is entitled to a new trial for error in the admission of evidence of conduct and declarations of Jim Cook.