dissenting.
At 1 May 1972 Schedule “C” Regular Criminal Session, defendant was tried on two bills of indictment, one charging first degree burglary and the other charging assault with intent to commit rape. The assault indictment charged that, defendant on 5 September 1971 assaulted Rosa Mae Davis with intent to rape her. With reference thereto the jury returned a verdict of not guilty. Mrs. Davis’s testimony affirmatively disclosed that she could not identify defendant as the intruder who was in her bedroom. With reference to the burglary indictment, defendant was found guilty of first degree burglary; and, in compliance with the jury’s recommendation, the court pronounced judgment which imposed a sentence of life imprisonment. G.S. 14-52. Upon defendant’s appeal, this Court awarded a new trial on account of the admission of incompetent prejudicial testimony. State v. Foster, 282 N.C. 189, 192 S.E. 2d 320 (1972).
At the 19 February 1973 Schedule “D” Conflict Criminal Session, defendant was tried again on the same burglary indictment and was again found guilty of first degree burglary and was again sentenced to life imprisonment. The present appeal is from that verdict and judgment.
The following is an excerpt from our opinion on former appeal:
“Motions filed by defendant assert the following: After his arrest on 22 October 1971, defendant was confined in. jail, until released on 19 January 1972. Nine warrants had been issued, two of which were for the crimes for which he was tried at the 1 May 1972 Session. Defendant was present and represented by counsel at each of five scheduled preliminary hearings. At each of the first four, the hearing was continued on motion of the State and over defendant’s objection. The last was on 19 January 1972 when, by order of the presiding District Court Judge, all of the cases were dismissed from the docket of that court and in each case the entry ‘nolle prosse’ was made.
“We take judicial notice that the 3 January 1972 Session, at which the two indictments on which defendant was tried were returned, was a one-week session. A week or so after his release on 19 January 1972, defendant was rearrestéd oh a capias based on these indictments. Seemingly, the District Court Judge who ordered defendant’s release on 19 January 1972 was unaware of the fact that defendant had been indicted by the grand jury.” 282 N.C. at 195, 192 S.E. 2d at 324-25.
*279By order dated 17 February 1972 Judge Hasty denied defendant’s motion that the indictments be dismissed because he had been denied a preliminary hearing. This Court found no error in such denial of defendant’s motions to dismiss. State v. Foster, 282 N.C. at 197, 192 S.E. 2d at 325.
Under the caption, “Motions Prior to Trial,” the record now before us shows the following:
“Mr. Gilchrist: Your Honor, prior to proceeding in one of the cases, State v. Willie Foster, Jr., #72-CR-1171, the State elects to take a nolle prosequi, in that a True Bill has never been returned by the Grand Jury, and, insofar as the State is able to ascertain, the witness cannot be served.
“Court: Let it be Nolle Prosequied.
“Mr. Gilchrist: The State intends to call for trial Case 72-CR-1173.
“Mr. Hicks: That is the only case you are going to call?
“Mr. Gilchrist: Yes.
“Mr. Hicks : Your Honor, prior to beginning the trial, we would like to make certain Motions.
“The defendant thereupon moved to dismiss for failure to bring defendant to trial prior to today, February 20, 1973, notwithstanding numerous terms of Court having intervened, as demanded by his prior Motion For Speedy Trial or For Discharge Under G.S. 15-10, made in Open Court and filed January 19, 1972 as to all the remaining seven cases calendared for trial at this February 19, 1973 Session, asking that all seven cases be dismissed, including the case being called for retrial by the prosecution, #72-CR-1173 (formerly #71-CR-62833 in the District Court), namely the seven cases known as Case' #72-CR-1172, formerly #71-CR-62838 in District Court, charging First Degree Burglary with intent to steal from James Edwárd Sinclair on or about October 11, 1971; Case #72-CR-1174, formerly #71-CR-62835 in District Court, charging Housebreaking and Larceny from Lonnie W. Wallace at 217 South Turner Avenue, Charlotte, N. C. on or about February 20, 1971; Case #72-CR-1175, formerly #71-CR-62834 in District Court, charging Housé-breaking' and Larceny from Kenneth Walker at 128 S. Gregg St., Charlotte, N. C. on or about May 8, 1971; Case #72-CR-1176, formerly #71-CR-62840 in District Court,, charging *280Housebreaking and Larceny from Teretha Phillips at 2224 Roslyn Avenue, Charlotte, N. C. on or about May 23,' 1971; Case #72-CR-1177, formerly #71-CR-62837 in District Court charging Housebreaking in the home of Shirley T. Torrence at 514 Honeywood Ave., Apartment No. 3, Charlotte, N. C., on or about September 17, 1971; and Case #72-CR-1178, formerly #71-CR-62836 in District Court charging Housebreaking and Larceny from Roy Lee Armstrong at 201 South Turner Ave., Charlotte, N. C. on or about July 24, 1971; inasmuch as the prosecution had just nolle prosequied Case #72-CR-1171, formerly #71-CR-62839 in District Court charging first degree Burglary with intent to rape Martha Pitts on or about August 3, 1971; and the defendant previously had been. found Not Guilty in his first trial of and Case #72-CR-1170, formerly #71-CR-62841 in District Court, charging assault with intent to rape Rosa Mae Davis on or about September 5, 1971, said Motion to Dismiss filed January 19, 1972 having been as follows. ...”
Whether the cross-examination of defendant referred to below was prejudicial must be considered against the background of the indictments of defendant for offenses for which the State did hot choose to place defendant on trial.
The State’s entire case rested upon the fingerprint on the flowerpot. The original of the latent print lifted from the flowerpot was unavailable at the second trial. However, a photograph of this lost print had been made. I am in accord with the Court’s holding that this photograph of the lost print is competent. However, the loss of the original does suggest that even the most careful officers and court personnel make mistakes.
No evidence points to the guilt of defendant except that relating to the fingerprint on the flowerpot. Defendant’s testimony and evidence tending to show where he was and what he was doing at the time of the alleged burglary was not impeached or discredited in any manner apart from the presence of the fingerprint on the flowerpot. Evidence offered by defendant consisting of testimony of his good character and of his employment record was not discredited or impeached in any manner except by the fingerprint on the flowerpot.
The case was before the jury in this posture: The State’s case consisted of testimony tending to show that the fingerprint *281on the flowerpot was made by defendant at or about the time of the alleged burglary. Defendant’s evidence consisted of testimony tending to show that he had never been in the Davis home; that he was an employed person of good character; and that he was at his home at the time of the alleged burglary. Seemingly, the State’s counsel considered it a matter of major importance that doubt be cast upon defendant’s character and the credibility of his testimony.
As the Court’s opinion points out, the admission of the card dated 1958, bearing the name “Willie Foster, Jr.,” was erroneous. There was no evidence as to when, by whom or under what circumstances this fingerprint was obtained. The 1958 card added nothing to the State’s case except to call attention to the fact that a card bearing the fingerprint of defendant was in the master file at the police department. The only significant impact, of this incompetent evidence was to give rise to the inference or suspicion that on some prior occasion defendant had made contact with the police department incident to some criminal charge. This, standing alone, probably would not be sufficiently prejudicial to justify the award of a new trial.
On cross-examination, the State’s counsel was permitted, over objection by defendant, to ask defendant the following questions :
I
“Q. Now, I will ask you if on October 20, of 19, excuse me, on August 3, of 1971 if you didn’t break into Martha W. Pitts’ housé...
“Mr. Hicks: Objection..
“Q. At 2416 Rozzelles Ferry Road here in the city?
“Mr. Hicks: Objection.
“A. No, I sure didn’t.”
This is the subject of Exception No. 23.
rH HH
• “Q. I will, ask you if you didn t break in the residence of James Sinclair at 312 Center . Street on October 11, 1971, by going into the front door and reaching up and unscrewing with your fingers a light bulb in the ceiling?
*282“Me. Hicks: Objection.
“Couet: Overruled.
“Q. Did you or did you not?
“A. What you mean ‘did I’? No, I didn’t.”
This is the subject of Exception No. 24.
h-t f — (
“Q. I will ask you if you didn’t break into the residence of Lonnie Bell Wallace at 217 South Turner Street? How far is South Turner Street from there on Center Street?
“Me. Hicks: Objection.
“A. I couldn’t tell you.
“Q. I will ask you if you didn’t break into Lonnie Bell Wallace’s house oh February 20, 1971, between 6:30 and 11:00 o’clock and by breaking out the center glass window in the front door? .
“Me. Hicks: Objection.
“Couet: Overruled.
“A. Sure didn’t.”
This is the subject of Exception No. 25.
IV
“Q. I will ask you if you did not break into the residence of Teretha Phillips at 2224 Roslyn Avenue on the 23rd of May, 1971, by prying open her kitchen window and breaking out the window pane?
“Me. Hicks: Objection.
“Couet: Overruled.
“A. Sure didn’t.”
This is the subject of Exception No. 26.
V
“Q. I will ask you if on the 17th of September, 1971, you didn’t break into the home of Shirley Torrence at 514 Honey-wood, Apartment No. 3, by taking the screen off the window and breaking out the front window ?
*283“Me. Hicks: Objection.
“Court: Overruled.
“A. Sure didn’t.”
This is the subject of Exception No. 27.
VI
“Q. And I will ask you if you on the 25th day of July 1971 you didn’t break into the residence of Roy Lee Armstrong at 201 South Turner Avenue?
“Mr. Hicks : Objection.
“Court: Overruled.
“A. Sure didn’t.”
This is the subject of Exception No. 28.
We note that the cross-examiner interrupted and revised his first question to correct an error in respect of the date on which the question suggests there was a breaking into the house of one Martha W. Pitts. The exact detail and particularity of each of these questions indicates that the cross-examiner had before him documents which alleged that defendant had committed such crimes. Indeed, it seems clear that these documents were the identical indictments referred to in the record under the heading, “Motions Prior to Trial,” that is, indictments on which the State has not prosecuted defendant.
Although the record shows that defendant is under indictment for each of the six criminal offenses to which thé cross-examiner’s questions relate, there is no evidence that he committed any of them. The delay in prosecution notwithstanding defendant’s repeated requests for preliminary hearings suggests that the State’s evidence is insufficient to show that any of these alleged crimes was committed by defendant. The State electéd to proceed only in a case which rested solely on a single fingerprint, presumably its strongest case.
Under the circumstances, the asking of these six questions by the State’s counsel was highly prejudicial to defendant in that it tended to destroy by inference and suspicion the otherwise unimpeached evidence as to his alibi and as to his good character. The asking of these questions gave the impression that the State’s counsel had knowledge of evidential facts suffi*284cient to support these insinuations. The record tends to negate rather than to support the view that he had such knowledge. If he did not have such knowledge, the cross-examination was improper. State v. Phillips, 240 N.C. 516, 82 S.E. 2d 762 (1954). If sufficient evidential facts do exist to support all or any of the six untried indictments, the State at long last may undertake to prosecute in such cases.
In State v. Williams, 279 N.C. 668, 672, 185 S.E. 2d 174, 180 (1971), this Court held “that, for purposes of impeachment, a witness, including the defendant in a criminal case, may not be cross-examined as to whether he, has been. indicted or is under indictment for a criminal offense other than that for which he is then on trial.” Approval in this case, of the six quoted questions would enable the cross-examiner to do indirectly what he could not do directly, that is, bring to the attention of the jury the fact that defendant was under indictment in other cases.
For the reasons indicated, I vote for a .new trial.
Justice Sharp joins in this dissenting opinion.