¶1 As there was no final judgment in the court below, the appeal must be dismissed. State v. Keeter, 80 N. C., 472; State v. Bailey, 65 N. C., 426.
¶2 But as there seems to have been some misapprehension as to the effect of the decision in this case on the former appeal as reported in 81 N. C., 550, we will say, that the legal effect-of the appeal was to vacate the judgment below, and the error adjudged in this court by reason of the variance between the allegation and the proof, operated to put out of the way or vacate the verdict. And so, upon the certified opinion of this court, the defendant stood before the court *696 below in point of law charged upon a sufficient bill of indictment and is entitled to a new trial. Let thi%be certified.
¶3 Per Curiam. Appeal dismissed and venire de novo.