This is an indictment charging the defendant with breaking and entering in the nighttime a certain building with intent to commit larceny. The defendant pleaded not guilty, was tried to a court and jury and found guilty. The trial justice denied defendant’s motion for a new trial and the case is now before us on a bill containing nine exceptions.

The single exception that has been briefed and argued is that taken to a portion of the trial justice’s charge relative to a certain witness called by the state.

The court as constituted at the time the case was decided being evenly divided as to the merits of the defendant’s exception, the verdict stands and the case is remitted to the superior court for further proceedings.