#### STATE OF NORTH CAROLINA v. CURTIS LEE LOVINGS

No. 9

(Filed 13 October 1971)

Appeal by defendant from Copeland, S. J., November 1970 Session Onslow Superior Court.

In this criminal prosecution the defendant, Curtis Lee Lov-ings, was charged by grand jury indictment with the armed robbery of Dwight M. Craft. The offense is alleged to have occurred on November 9, 1969. Upon arraignment the defendant, represented by counsel, entered a plea of not guilty.

Dwight M. Craft, a witness for the State, testified that on November 9, 1969, he drove his automobile from Jacksonville, Florida, to Jacksonville, North Carolina. He stopped for gas near Wilmington at about 3 o’clock in the morning. The defendant, whom he did not know, requested and was given permission to ride as a passenger in the Craft vehicle to the North Carolina Naval Base at Jacksonville. Before reaching the latter point, the defendant drew a short, flat pistol, not a revolver, and by its threatened use forcibly took from the witness $20.00 in currency.

When Craft stopped the automobile at Jacksonville about 3:30 o’clock in the morning, the defendant ran. Craft notified the police who soon thereafter arrested the defendant in a telephone booth. He had a flat automatic pistol and $18.39 in his pocket. The witness positively identified the defendant as the person who robbed him, and so testified before the jury. The defendant neither testified nor offered evidence. The jury returned a verdict of guilty. The defendant appealed from the sentence imposed.

The court appointed counsel to prosecute the appeal. However, the case on appeal was not served within the time required by the appellate rules. Nevertheless, the Court of Appeals by certiorari ordered the appeal docketed for review. The cause was transferred to the Supreme Court as prescribed by its referral order of July 31, 1970. The defendant filed the following signed statement with his case on appeal :

“That I am entitled to my release from North Carolina custody on the grounds that I have been denied my consti*508tutional right of appeal from verdict and judgment and that an appeal by Writ of Certiorari at this late date still results in denial of fundamental constitutional rights because if I am successful on said appeal, a new trial eighteen (18) months later would be inherently unfair, etc.

/s/ Curtis Lee Lovings”

Robert Morgan, Attorney General, by William W. Melvin, Assistant Attorney General; T. Buie Costen, Assistant Attorney General, for the State.

Worth B. Folger for defendant appellant.

HIGGINS, Justice.

The defendant permitted the time to pass without perfecting his appeal. However, on petition the record was ordered filed in the Court of Appeals for review.

The case on appeal notes some minor objections to the introduction of testimony. Review, however, discloses the objections are not sustained. In fact, the record before us fails to disclose any error either in the trial or in the judgment.

No error.