{
  "id": 8551517,
  "name": "STATE OF NORTH CAROLINA v. RAYMOND DEWITT HOWARD, JR.",
  "name_abbreviation": "State v. Howard",
  "decision_date": "1969-07-23",
  "docket_number": "No. 6910SC350",
  "first_page": "509",
  "last_page": "511",
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    {
      "cite": "1 N.C. App. 365",
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    {
      "cite": "271 N.C. 323",
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  "last_updated": "2023-07-14T22:58:43.915660+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Mall\u00e1RD, C.J., and Parrer, J., concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. RAYMOND DEWITT HOWARD, JR."
    ],
    "opinions": [
      {
        "text": "BRITT, J.\nDefendant\u2019s first assignment of error is that his constitutional right to counsel was violated. Inasmuch as the record on appeal, presumably prepared by defendant\u2019s attorney, does not disclose when counsel was appointed and defendant\u2019s brief does not specify as to when or in what respect defendant\u2019s right to counsel was violated, we can only speculate as to his contention. The record indicates that a warrant for defendant\u2019s arrest was issued on 15 October 1968, that on the same day he waived a preliminary hearing before a justice of the peace, and that bond for his appearance in superior court was set. We assume that defendant contends he was entitled to counsel at his preliminary hearing; if this is his contention, the question has been settled by our Supreme Court in the case of Gasque v. State, 271 N.C. 323, 156 S.E. 2d 740, where it was held that failure to provide a defendant with counsel at a preliminary hearing does not violate any constitutional right. See also State v. Bentley, 1 N.C. App. 365, 161 S.E. 2d 650. The assignment of error is overruled.\nIn the other three assignments of error brought forward in his brief, defendant contends (1) that the evidence was not sufficient to go to the jury on the question of armed robbery, (2) that the court erred in overruling his motion of nonsuit as to the charge of armed robbery, and (3) the court erred in charging the jury on armed robbery.\nWe deem it unnecessary to relate the evidence here; suffice to say, we have carefully reviewed the evidence and the charge and hold that the evidence was sufficient to warrant the submission of the case to the jury on armed robbery and the charge is free from prejudicial error. Furthermore, it will be noted that the jury returned a verdict of the lesser offense of common law robbery. It- is well established in this jurisdiction that where a defendant is found guilty of a lesser degree of the crime charged, error relating to the graver offense will not be held prejudicial in the absence of a showing that the verdict of guilty of the lesser offense was affected thereby. 3 Strong, N.C. Index 2d, Criminal Law, \u00a7 172, p. 144. State v. Casper, 256 N.C. 99, 122 S.E. 2d 805; State v. DeMai, 227 N.C. 657, 44 S.E. 2d 218. Defendant has not shown that the verdict of guilty of common law robbery was affected by the submission of his case on armed robbery. The assignments of error are overruled.\nThe defendant received a fair trial, free from prejudicial error, and the sentence imposed was within the limits prescribed by statute.\nNo error.\nMall\u00e1RD, C.J., and Parrer, J., concur.",
        "type": "majority",
        "author": "BRITT, J."
      }
    ],
    "attorneys": [
      "Attorney General Robert Morgan and Deputy Attorney General James F. Bullock for the State.",
      "Malcolm B. Grandy for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. RAYMOND DEWITT HOWARD, JR.\nNo. 6910SC350\n(Filed 23 July 1969)\n1. Constitutional Law \u00a7 32\u2014 right to counsel \u2014 preliminary hearing\nFailure to provide defendant with counsel at a preliminary hearing does not violate any constitutional right.\n2. Criminal Law \u00a7 172\u2014 error cured by verdict \u2014 conviction of lesser offense\nWhere defendant is found guilty of a lesser degree of the crime charged, error relating to the graver offense will not be held prejudicial in the absence of a showing that the verdict of guilty of the lesser offense was affected thereby.\nAppeal by defendant from Hobgood, J., at the 18 November 1968 Session of Waee Superior Court. (Certiorari allowed 28 March 1969.)\nBy indictment proper in form, defendant was charged with the armed robbery of one H. K. Wall on 15 October 1968. Defendant was represented at trial, as he is here, by court-appointed attorney. He pleaded not guilty, the jury found him guilty of common law robbery, and from judgment imposing prison sentence of not less than seven years nor more than ten years, he appealed to this Court.\nAttorney General Robert Morgan and Deputy Attorney General James F. Bullock for the State.\nMalcolm B. Grandy for defendant appellant."
  },
  "file_name": "0509-01",
  "first_page_order": 531,
  "last_page_order": 533
}