#### STATE OF NORTH CAROLINA v. MERIL LANE ANDREWS

No. 7210SC193

(Filed 29 March 1972)

Appeal by defendant from Braswell, Judge, 80 August 1971 Session of Superior Court held in Wake County. Defendant, along with his co-defendant James Jackson Blalock, was tried at the 2 September 1969 Session of Superior Court held in Wake County on two bills of indictment, each charging him with rape, a capital felony. On the bill of indictment in which he was charged with the rape of one Beverly Suzanne Beam (Beam), he was convicted of the lesser included offense of an assault with intent to commit rape and was given a prison sentence of fifteen years. On the bill of indictment in which he was charged with the rape of Patricia Ann Hinton (Hinton), he was convicted of the lesser included offense of an assault upon a female and was given a prison sentence of six months to begin at the expiration of the fifteen year sentence, and a fine of $500 was imposed.

Defendant Andrews and his co-defendant Blalock appealed to the Court of Appeals which found no error in the trial. See State v. Blalock and State v. Andrews, 9 N.C. App. 94, 175 S.E. 2d 716 (1970). Defendant’s petitions for writs of certiorari were denied by the North Carolina Supreme Court on 28 August 1970 (277 N.C. 113) and by the United States Supreme Court on 22 February 1971 (401 U.S. 912, 27 L.Ed. 2d 812, 91 S.Ct. 881). On 4 September 1970, defendant Andrews, with his co-defendant Blalock, filed a motion in the Superior Court of Wake County for a new trial on the grounds of newly dis*719covered evidence. Further facts necessary to an understanding of this appeal are set forth in the opinion in number 7210SC225, State v. James Jackson Blalock, filed this date by Chief Judge Mallard.

Attorney General Morgcm, by Associate Attorney Haskell, for the State.

Carlos W. Murray, Jr. for the defendant.

BROCK, Judge.

Defendant’s assignments of error and arguments are basically the same in this appeal as they are in the separate appeal by James Jackson Blalock. It would serve no useful purpose to restate here what has already been clearly said by Chief Judge Mallard in the Blalock appeal.

For the reasons stated in the opinion in number 7210SC225, State v. James Jackson Blalock, filed this date, we hold that there is no error in the denial of defendant’s motion for a new trial on the grounds of newly discovered evidence.

Affirmed.

Judges Hedrick and Vaughn concur.