#### STATE OF NORTH CAROLINA v. JOHNNY HENRY LONG and JAMES M. SMITH

No. 7226SC61

(Filed 24 May 1972)

1. Robbery § 4 — armed robbery — sufficiency of evidence

The State’s evidence was sufficient to be submitted to the jury in a prosecution of two defendants for the armed robbery of a motel night auditor.

2. Criminal Law § 132 — motion to set aside verdict

A motion to set aside the verdict as being against the weight of the' evidence is within the discretion of the trial court, and denial of the motion is not reviewable on appeal.

On certiorari to review judgment of Anglin, Judge, entered at the 13 April 1970 Session of Mecklenburg Superior Court.

By separate indictments defendants were charged with the armed robbery of Robert H. House (House) on 27 December 1969 and feloniously taking $100 in cash from him. Defendants pled not guilty, were found guilty as charged and from judgments imposing prison sentences of not less than 16 nor more than 20 years on each defendant, they appealed.

Attorney General Robert Morgan by R. S. Weathers, Assistant Attorney General, for the State.

A. A. Contras and Arthur Gooodman, Jr., for defendants appellants.

BRITT, Judge.

[1] Defendants contend that the court erred in denying their motions for nonsuit interposed at the conclusion of the State’s evidence and renewed at the close of all the evidence. Briefly summarized the evidence for the State tended to show:

On 27 December 1969 at about 6:35 a.m. House was on duty as night auditor at the TraveLodge Motel on South Tryon Street in the City of Charlotte. Defendants entered the office where House was working behind a counter. Defendant Long drew a gun on House and said, “Don’t say anything. Just get back.” Defendant Smith then went over the counter, pushed House backward causing him to fall on the floor in a sitting position. *654The gun went off, a bullet striking House in his side. Defendant Long kept the gun pointed toward House and defendant Smith proceeded to take money from the motel cash register and put it in his pocket. After taking the money, defendant Smith then advanced toward House with a knife. House raised his right leg and defendant Smith stuck the knife in House’s knee. After shooting and cutting House and getting the money, defendants left the motel. House summoned help and was taken to a hospital. He positively identified defendants as the men who shot, cut and robbed him. The witness Jacquelyn Chisholm testified that defendants twice entered the motel shortly before 7:00 a.m.; that defendant Long told her that he and Smith robbed the motel and got $50.00.

The evidence was more than sufficient to survive the motions for nonsuit.

[2] Defendants contend that the court erred in denying their motions to set the verdict aside as being against the weight of the evidence. It is well settled that such motion is within the discretion of the trial court and its refusal to grant the motion is not reviewable on appeal. 3 Strong, N. C. Index 2d, Criminal Law, § 132, pp. 55-56.

Defendants received a fair trial free from prejudicial error and the sentences imposed were within the limits permitted by statute. G.S. 14-87.

No error.

Judges Campbell and Graham concur.