#### STATE OF NORTH CAROLINA v. GARY BANKS

No. 7329SC517

(Filed 25 July 1973)

Appeal by defendant from Thornburg, Judge, 12 February 1973 Session of Superior Court held in Henderson County.

Defendant Banks had been tried and convicted of his first escape in the 28 March 1972 term of the District Court of Hen*115derson County..In this action he was charged in a proper bill of indictment with a second offense of escape. He entered a plea of. not guilty to this charge. The jury returned a verdict of guilty of felonious escape and defendant was sentenced to two years imprisonment.

The State’s evidence tended to show that on 10 June 1972 Banks was duly serving a term in the Henderson County Prison Unit. 6045 for non-felonious breaking and entering and non-felonious larceny. Prison guard Hugh McLean, testified that he had seen Banks in the prison around 5:00 p.m. on the day in question but another guard, Sam Reed, stated that a check at 10:00 p.m. revealed that defendant was not in the prison. Both guards testified that Banks did not have permission to leave the unit. Banks was apprehended in an Asheville apartment on 24 September 1972.

Banks did not offer any evidence.

Attorney General Morgan, by Associate Attorney Speas, for the State.

Howe & Waters, by R. Charles Waters, for defendant appellant.■ .

BALEY, Judge,

We have carefully examined the record and we are unable to find any defect in the proceedings in the trial below. Defendant received a fair trial, free from prejudicial error.

No error.

Judges Campbell and Hedrick concur.