(concurring in part; dissenting in part):
I concur in part with the result reached by the majority, but on a different ground. The majority relies upon State v. Dasher, 278 S. C. 395, 297 S. E. (2d) 414 (1982), in which I dissented. I adhere to my views expressed in Dasher, as modified here.
The majority summarily states in a footnote that defense counsel’s post verdict motion was improper, but declines to address the issue on the basis it is not properly raised. I disagree. Appellant’s exceptions 2, 4 and 6 clearly question the trial judge’s authority to grant a judgment notwithstanding the verdict. The State’s argument as to these exceptions is deficient, but the issue is not abandoned.
In a criminal case, the trial judge has no authority to grant a judgment notwithstanding the verdict. The only post verdict fact-based remedy available in a criminal case is a motion for a new trial. State v. Dawkins, 32 S. C. 17, 10 S. E. 772 (1890).
*286In State v. Dasher, supra, this Court alluded to impropriety of a judgment N.O.V. in a criminal case by stating “[tjhere is no precedent in this State for such action.” Id. 297 S. E. (2d) at 416. However, the Court’s holding did little to eliminate the confusion among members of the bench and bar as to the proper post verdict motions in a criminal case.
There are two motions available to defense counsel following a guilty verdict in a criminal case. He may move for verdict in arrest of judgment to prevent entry of judgment on the grounds of the insufficiency of the indictment or some other fatal defect appearing on the face of the record. State v. Ellis, 32 N. C. App. 226, 231 S. E. (2d) 285 (1977); State v. Rafe, 56 S. C. 379, 34 S. E. 660 (1900); State v. Cooler, 30 S. C. 105, 8 S. E. 692 (1889). He may not move for verdict in arrest of judgment based on the sufficiency of the evidence to sustain the allegations in the indictment. State v. Hamilton, 17 S. C. 462 (1882). Secondly, he may move for a new trial upon the facts. State v. Dasher, supra. See also, Rule 5, Criminal Practice Rules; State v. Miller, 223 S. C. 128, 74 S. E. (2d) 582 (1953). Thus, the trial judge has no authority to grant relief on factual grounds after a verdict of guilty that is equivalent to the relief he could have granted at the directed verdict stage.
A trial judge is understandably reluctant to grant a directed verdict and deny the jury an opportunity to consider the case. However, it is the trial judge’s obligation to make the preliminary factual determination required by the motion for directed verdict. He may not defer this judgment to the jury. The trial judge does not have a second chance, after the verdict, to grant equivalent relief. His only authority to disturb a guilty verdict on a factual question is to grant a new trial.
The trial judge therefore erred in arresting the jury verdict on the basis of insufficient evidence. The only relief which he could have granted on this basis was a new trial, had the proper motion been made.1
I stated my opinion in the Dasher dissent that the State should not be allowed to appeal a “fact based post verdict judgment.” I adhere to that view; however, I note that the *287only permissible “fact based post verdict judgment” which can be entered in a criminal case is the grant of a new trial. This view is consistent with previous decisions of this Court which deny the State the right to appeal the grant of a new trial. State v. Lynn, et al., 120 S. C. 258, 113 S. E. 74 (1922); State v. Byars, 79 S. C. 174, 60 S. E. 448 (1908).
The majority’s ruling on the facts is gratuitous and premature. Reversal is required on the procedural error. I believe it is fundamentally unfair for this Court to foreclose respondent from factual issues he may wish to raise when, and if, he appeals his conviction. I expressly decline to make any ruling as to the facts of this case.
After ruling that the trial judge had no authority to substitute his judgment for the judgment of the jury, the majority affirms the grant of judgment N.O.V. on the housebreaking conviction. This inconsistent ruling is error. The trial judge had no authority to grant judgment N.O.V. or verdict in arrest of judgment on any of the charges. I believe reversal is required on all of the charges and the case remanded for sentencing.
Defendant’s counsel on appeal did not represent him at the trial level.