{ "id": 8572031, "name": "STATE OF NORTH CAROLINA v. FRANK GAINEY", "name_abbreviation": "State v. Gainey", "decision_date": "1972-01-28", "docket_number": "No. 120", "first_page": "366", "last_page": "375", "citations": [ { "type": "official", "cite": "280 N.C. 366" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "25 S.E. 2d 598", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "223 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602236 ], "opinion_index": 0, "case_paths": [ "/nc/223/0173-01" ] }, { "cite": "169 S.E. 2d 839", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "275 N.C. 565", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559236 ], "opinion_index": 0, "case_paths": [ "/nc/275/0565-01" ] }, { "cite": "64 S.Ct. 67", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1943, "opinion_index": 0 }, { "cite": "88 L.Ed. 456", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1943, "opinion_index": 0 }, { "cite": "320 U.S. 759", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6156112, 6155961, 6156042, 6156011 ], "year": 1943, "opinion_index": 0, "case_paths": [ "/us/320/0759-04", "/us/320/0759-01", "/us/320/0759-03", "/us/320/0759-02" ] }, { "cite": "25 S.E. 2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "opinion_index": 0 }, { "cite": "223 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603501 ], "year": 1943, "opinion_index": 0, "case_paths": [ "/nc/223/0208-01" ] }, { "cite": "106 S.E. 2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "249 N.C. 379", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615586 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/249/0379-01" ] }, { "cite": "158 S.E. 2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "272 N.C. 710", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574441 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/272/0710-01" ] }, { "cite": "145 S.E. 2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "266 N.C. 55", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559584 ], "opinion_index": 0, "case_paths": [ "/nc/266/0055-01" ] }, { "cite": "143 S.E. 3", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "195 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630610 ], "opinion_index": 0, "case_paths": [ "/nc/195/0537-01" ] }, { "cite": "185 S.E. 2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "180" }, { "page": "181" } ], "opinion_index": 0 }, { "cite": "279 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571959 ], "opinion_index": 0, "case_paths": [ "/nc/279/0663-01" ] }, { "cite": "157 S.E. 2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "231" } ], "opinion_index": 0 }, { "cite": "271 N.C. 600", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565985 ], "pin_cites": [ { "page": "607-608" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0600-01" ] }, { "cite": "157 S.E. 2d 213", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "271 N.C. 608", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566089 ], "opinion_index": 0, "case_paths": [ "/nc/271/0608-01" ] }, { "cite": "158 S.E. 2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "272 N.C. 282", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572755 ], "opinion_index": 0, "case_paths": [ "/nc/272/0282-01" ] }, { "cite": "399 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167869 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/399/0001-01" ] }, { "cite": "88 S.Ct. 1423", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1968, "opinion_index": 0 }, { "cite": "20 L.Ed. 2d 288", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1968, "opinion_index": 0 }, { "cite": "390 U.S. 1030", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6374114, 6374315, 6374478, 6374830, 6375029, 6375258, 6374653 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/us/390/1030-01", "/us/390/1030-02", "/us/390/1030-03", "/us/390/1030-05", "/us/390/1030-06", "/us/390/1030-07", "/us/390/1030-04" ] }, { "cite": "156 S.E. 2d 740", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "271 N.C. 323", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563824 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/271/0323-01" ] } ], "analysis": { "cardinality": 984, "char_count": 23204, "ocr_confidence": 0.529, "pagerank": { "raw": 9.160801507209776e-07, "percentile": 0.9795719750456494 }, "sha256": "42b91f6b576423a9bcffdec1256def02d1179ff817bf33f1fd6bdd2f82f89a96", "simhash": "1:16f824ee352f3fdb", "word_count": 3941 }, "last_updated": "2023-07-14T16:17:02.302234+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. FRANK GAINEY" ], "opinions": [ { "text": "SHARP, Justice.\nDefendant\u2019s case on appeal contains seven assignments of error, one of which he expressly abandons in his brief. His first two assignments relate to Judge Dupree\u2019s findings that, prior to defendant\u2019s waiver of counsel and preliminary hearing, he had explained to him the nature of the charges against him, the statutory punishment therefor, and his constitutional rights in connection therewith.\nDefendant was bound over to the Superior Court upon a warrant charging him with common-law robbery, a crime punishable by imprisonment not exceeding ten years. G.S. 14-2 (1969). In the Superior Court he was tried upon an indictment charging robbery with firearms for which the punishment is not less than five nor more than thirty years. G.S. 14-87 (1969). Defendant argues that the crime for which he was tried was not the one which Judge Dupree had explained to him and, therefore, he could not have knowingly and understanding^ waived either counsel or a preliminary hearing. However, defendant does not project this argument further. He points to no prejudice whatever resulting to him from the absence of counsel at the time he waived preliminary hearing, and the record neither discloses nor suggests any. Nothing prejudicial to defendant is shown to have taken place at any time. He made no statements with reference to the charge against him until he testified in the Superior Court, where he was represented by counsel. No preliminary hearing was required and none was held.\nUnder our law a preliminary hearing is not an essential prerequisite to a bill of indictment. Gasque v. State, 271 N.C. 323, 156 S.E. 2d 740, cert. den. 390 U.S. 1030, 20 L.Ed. 2d 288, 88 S.Ct. 1423 (1968), and cases therein cited. However, since G.S. 7A-451 (effective 1 July 1969) declares a preliminary hearing to be \u201ca critical stage of the action,\u201d it follows that an indigent defendant would be entitled to the appointment of counsel if such a hearing is held. See Coleman v. Alabama, 399 U.S. 1, 26 L.Ed. 2d 387, 90 S.Ct 1999 (1970). We hold that none of defendant\u2019s constitutional rights were violated during the proceedings in the District Court; that his waiver of counsel was valid; and that he sustained no prejudice either by reason of his waiver of counsel or preliminary hearing. State v. Clark, 272 N.C. 282, 158 S.E. 2d 705.\nDefendant\u2019s third assignment of error is: \u201cTo the court\u2019s overruling of defendant\u2019s objection to questions by the solicitor concerning defendant\u2019s previous arrest. (R p 41)\u201d As we have repeatedly pointed out, such an assignment does not comply with Rule 19 (3) of the Rules of Practice in the Supreme Court. 254 N.C. at 783, 798-800. See Grimes v. Credit Company, 271 N.C. 608, 157 S.E. 2d 213; State v. Staten, 271 N.C. 600, 607-608, 157 S.E. 2d 225, 231. Although the assignment of error does not itself specifically show the questions sought to be presented as required by the rule, we have reviewed the record and ascertained the question. On cross-examination, after defendant denied that he had seen Officer Acker \u201cearlier that day\u201d (31 January 1969), he testified without objection that Acker had arrested him on a Thursday night \u2014 presumably on 30 January 1969. The solicitor\u2019s next question was, \u201cWhat did he arrest you for\u201d? Defendant\u2019s objection was overruled, and he answered that he had been arrested for an assault upon a person whose name he did not know, just somebody he was \u201cfighting with.\u201d\nIt is no longer the rule in North Carolina that, for purposes of impeachment, a witness may be asked if he has been arrested or indicted for a specified offense. In State v. Williams, 279 N.C. 663, 185 S.E. 2d 174, this Court overruled State v. Maslin, 195 N.C. 537, 143 S.E. 3; State v. Brown, 266 N.C. 55, 145 S.E. 2d 297, and other cases which permitted such questions for impeachment. Chief Justice Bobbitt, writing the opinion of the Court, said: \u201cWe now hold that, for purposes of impeachment, a witness, including the defendant in a criminal case, may not be cross-examined as to whether he has been indicted or is under indictment for a criminal offense other than that for which he is then on trial. ... A fortiori we hold that, for purposes of impeachment, a witness, including the defendant in a criminal case, may not be cross-examined as to whether he has been accused, either informally or by affidavit on which a warrant is issued, of a criminal offense unrelated to the case on trial, nor cross-examined as to whether he has been arrested for such unrelated criminal offense.\u201d Id. at 672, 185 S.E. 2d at 180.\nThe trial of this case occurred before the decision in Williams. Although no longer permissible, the solicitor\u2019s questions with reference to defendant\u2019s arrest were then competent. However, the decision in Williams did not change the rule that for purposes of impeachment a witness may be asked whether he has committed specific criminal acts or been guilty of specified reprehensible conduct. State v. Hartsell, 272 N.C. 710, 158 S.E. 2d 785; State v. Bell, 249 N.C. 379, 106 S.E. 2d 495; Stansbury, N. C. Evidence \u00a7 111 (2d Ed. 1963). Had the solicitor\u2019s question been whether defendant had engaged in an affray on Thursday night instead of \u201cWhat were you arrested for?\u201d it would have been permissible.\nAs the opinion in Williams pointed out, \u201cWhether a violation of the rule [against impeachment by evidence of criminal charges as distinguished from convictions] will constitute sufficient ground for a new trial will depend upon the circumstances of a particular case.\u201d Id. at 674, 185 S.E. 2d at 181. Therefore, even under Williams, the admission of the evidence with reference to defendant\u2019s arrest was inconsequential and constitutes no ground for a new trial.\nAssignment of error No. 4 purports to raise the question whether the court erred \u201cin overruling defendant appellant\u2019s objections to questions by the solicitor concerning defendant\u2019s failure to have certain defense witnesses in court.\u201d This assignment likewise does not comply with our Rule T9 (3). The record page reference to which the assignment refers shows defendant to have testified without objection that Willie Ray, the man who (he said) had given him and Robinson a ride to the home of Robinson\u2019s mother, was not in court. When the solicitor asked defendant if he had subpoenaed Ray as a witness, defendant answered that Ray \u201cdidn\u2019t want to come to court.\u201d The solicitor\u2019s next question was, \u201cHe didn\u2019t want to go on the stand and perjure himself, did he?\u201d There was no objection to this question, which defendant answered by saying, \u201cHe didn\u2019t have no reason to tell no lie.\u201d\nDefense counsel then objected \u201cabout where he [Ray] is and what he was going to say.\u201d The objection was overruled, and the solicitor dropped the subject. Defendant not only made no objection to the question which elicited this testimony, but there was no motion to strike it. However, such a motion would have been addressed to the discretion of the court. State v. Herndon, 223 N.C. 208, 25 S.E. 2d 611, cert. denied 320 U.S. 759, 88 L.Ed. 456, 64 S.Ct. 67 (1943). See 4 Strong, N. C. Index Trial \u00a7 15 (1961). The solicitor\u2019s question with reference to Ray\u2019s motives was objectionable. However, it is inconceivable that it affected the outcome of the case, and under all the circumstances, it cannot be held prejudicial error. State v. Perry, 275 N.C. 565, 169 S.E. 2d 839; State v. Hunt, 223 N.C. 173, 25 S.E. 2d 598.\nThe foregoing comments with reference to assignment of error No. 4 are equally applicable to assignment No. 5. On direct examination defendant had explained his flight from Officer Acker at the time of his arrest by saying that he was on parole and was not supposed to be out after midnight. On cross-examination the solicitor asked him how many times he had broken the terms and conditions of his parole. There was no objection and defendant answered, \u201cThat is the first time that I can recall.\u201d Defense counsel then objected \u201cto this line of questioning\u201d on the ground that defendant \u201cis not charged with a violation of probation, your Honor, and that is not the issue here.\u201d No motion to strike the answer was made. Judge Bickett did not understand counsel\u2019s statement. His reply to it was that he could not hear a word and that \u201cthe jury is the judge.\u201d\nFor the purpose of impeachment it was competent for the solicitor to ask defendant if he had been guilty of other parole violations and, had objection been timely made, it would have been properly overruled. Therefore, the judge\u2019s failure to evaluate this question and answer was immaterial. Indubitably, the competency and admissibility of evidence is for the court and not the jury. However, it is beyond belief that the judge\u2019s erroneous statement that \u201cthe jury is the judge,\u201d when considered in context, could have influenced the jury\u2019s verdict one way or the other. Assignment of error No. 5 is overruled.\nAfter defendant had testified on cross-examination that he had bought the watch, which Grice identified as his, from another inmate while he was in prison in Raleigh, the solicitor asked this question: \u201cYou\u2019ve had a lot of experience in prison, haven\u2019t you?\u201d Defendant\u2019s objection was overruled, and he answered that he had \u201cbeen convicted of nothing but assault cases ... on one charge they had me for attempt to kill; I was shooting at one.\u201d\nThe solicitor\u2019s question was inexactly phrased, but in effect it was, as defendant understood, an inquiry as to the number of prison sentences defendant had served. As such, it was proper cross-examination, and the court\u2019s ruling was not erroneous. Assignment of error No. 6 is overruled.\nIn his brief, defendant properly abandoned his seventh and final assignment of error. It was based upon his only exception to the judge\u2019s charge, and it pointed to no error.\nWe have carefully examined the entire record in this case. It discloses that defendant has had a fair trial, free from prejudicial error, and it leaves no reasonable doubt of his guilt. While defendant\u2019s appeal appears to have been unnecessarily delayed, since his sentence must be affirmed, no prejudice has resulted to him from the delay. He has been in custody since 4 November 1969 and, all the while, he has been serving the sentence from which he appealed. G.S. 15-186.1 (1971).\nIn the trial below we find\nNo error.", "type": "majority", "author": "SHARP, Justice." } ], "attorneys": [ "Attorney General Robert Morgan and Staff Attorney Bur-ley B. Mitchell, Jr., for the State.", "J. William Anderson for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FRANK GAINEY\nNo. 120\n(Filed 28 January 1972)\n1. Constitutional Law \u00a7 32; Criminal Law \u00a7 21\u2014 waiver of counsel and preliminary hearing \u2014 trial on more serious charge\nDefendant\u2019s waiver of counsel and preliminary hearing in the district court on a charge of common law robbery was not rendered invalid by the fact that defendant was not tried in the superior court for common law robbery but was thereafter indicted and tried for armed robbery.\n2. Constitutional Law \u00a7 32; Criminal Law \u00a7 21\u2014 necessity for preliminary hearing \u2014 appointment of counsel\nWhile a preliminary hearing is not an essential prerequisite to a bill of indictment, an indigent defendant is entitled to the appointment of counsel if such a hearing is held. G.S. 7A-451.\n3. Criminal Law \u00a7 161\u2014 form of assignments of error\nAn assignment of error \u201cTo the court\u2019s overruling of defendant\u2019s objection to questions by the solicitor concerning defendant\u2019s previous arrest\u201d does not comply with Supreme Court Rule 19(3) since it does not itself specifically show the questions sought to be presented.\n4. Criminal Law \u00a7\u00a7 86, 89\u2014 impeachment of defendant \u2014 arrest or indictment for other crimes \u2014 commission of specified criminal acts\nFor purposes of impeachment, a witness, including the defendant in a criminal case, may no longer be asked if he has been arrested .or indicted for a specific offense, but he may be asked whether he has committed specific criminal acts or been guilty of specified reprehensible conduct.\n5. Criminal Law \u00a7 86\u2014 cross-examination as to other criminal charges \u2014 new trial\nWhether a violation of the rule against impeachment by evidence of criminal charges as distinguished from convictions will constitute sufficient ground for a new trial depends upon the circumstances of a particular case.\n6. Criminal Law \u00a7 86\u2014 cross-examination of defendant \u2014 arrest for another crime \u2014 harmless error\nIn this armed robbery prosecution, the admission of evidence on cross-examination of defendant with reference to defendant\u2019s arrest for assault the day before the robbery was inconsequential and constitutes no ground for a new trial.\n7. Criminal Law \u00a7\u00a7 102, 170\u2014 absence of defense witness \u2014 objectionable question by solicitor \u2014 harmless error\nWhere defendant testified that a certain defense witness was not in court and had not been subpoenaed because \u201che didn\u2019t want to come to court,\u201d the solicitor\u2019s question, \u201cHe didn\u2019t want to go on the stand and perjure himself, did he?\u201d, while objectionable, could not have effected the outcome of the case and was not prejudicial error.\n8. Criminal Law \u00a7 86\u2014 cross-examination of defendant \u2014 other parole violations\nFor the purpose of impeachment, it was competent for the solicitor to ask defendant if he had been guilty of other parole violations.\n9. Criminal Law \u00a7\u00a7 99, 170\u2014 remark by trial court \u2014 harmless error\nTrial judge\u2019s erroneous comment, in passing upon a defense objection to the solicitor\u2019s cross-examination of defendant, that \u201cthe jury is the judge\u201d held not prejudicial.\n10.Criminal Law \u00a7 86\u2014 cross-examination of defendant \u2014 number of prison sentences served\nThe solicitor was properly allowed to cross-examine defendant as to the number of prison sentences defendant had served.\nAppeal by defendant from Bickett, J., 3 November 1969 Schedule \u201cB\u201d Session of Cumberland (belated appeal allowed 5 May 1971 by writ of certiorari from the Court of Appeals), transferred for initial appellate review by the Supreme Court under the general referral order of 31 July 1970, entered pursuant to G.S. 7A-31(b) (4) (1969).\nDefendant was arrested upon a warrant which charged that on 1 February 1969 he feloniously took $145.00 from the person of Cleveland Graham by making a felonious assault upon him which put him \u201cin bodily fear and danger of his life.\u201d On 18 February 1969 at a regular session of the District Court, Judge Joseph E. Dupree explained to defendant the nature of the charges against him and the statutory punishment therefor, his right to have counsel appointed to represent him if he was indigent, and his right to a preliminary hearing. Defendant stated to the court that he did not desire the appointment of counsel and signed a written waiver.\nDefendant also waived preliminary hearing, and Judge Dupree bound him over to the Superior Court for action by the grand jury. At the 10 March 1969 Session defendant and Charles W. Robinson were indicted for feloniously taking $145.00 from Cleveland Graham by the use of a pistol whereby his life was endangered and threatened.\nOn 26 February 1969, eight days after he was bound over, Judge Bickett appointed Attorney Marion C. George, Jr., to represent defendant. However, \u201cfor good cause shown,\u201d on 27 August 1969, he permitted Mr. George to withdraw and appointed Attorney J. A. Bouknight, Jr., in his stead. On 29 September 1969 \u201cfor good reasons, including Defendant Gainey\u2019s wishes that Movant withdraw and other reasons, the revelation of which would violate Defendant Gainey\u2019s privileges,\u201d Mr. Bouknight moved to withdraw. Judge Bickett allowed the motion and appointed Mr. J. William Anderson, defendant\u2019s present attorney, to represent him.\nUpon the trial, which began 3 November 1969, the evidence for the State tended to show:\nOn 1 February 1969 Cleveland Graham, Hubert Bennett, and David Grice were members of the United States Army, stationed at Fort Bragg. Between 12:45 and 1:30 a.m. the three men left the Savoy Club in Fayetteville and got into the automobile belonging to Graham, which was parked off the edge of the street about a car\u2019s length from the entrance to the Savoy. The entrance was lighted and a street light was \u201cin touching distance from the bumper of [the] car.\u201d There was \u201cenough light there to read a newspaper.\u201d\nGraham got in the driver\u2019s seat with Grice beside him; Bennett got in the back. As Graham was about to start the car two men approached. One of them, Frank Gainey, \u201csnatched the door open,\u201d and pointed a pistol with a white handle at his face. He ordered Graham to get out, face the automobile, and put his hands on top of the car. Graham did as he was told. Gainey held the gun to the back of Graham\u2019s head while he removed his wallet, containing $145.00, from his pocket. The other man, who was Charles Wayman Robinson, jerked Bennett out of the car. Grice was already out. When Robinson discovered that neither Grice nor Bennett had any money, Gainey told Robinson to take the watch from Grice\u2019s arm. Gainey left Graham to take the watch himself.\nWhile the two men were occupied with Grice, Bennett ran into the Savoy Club to get help. However, \u201che walked in and circled right back out . . . when the man inside wanted to charge two dollars for running in there.\u201d (Bennett knew that the Savoy ticket sellers were armed with pistols and inclined to suspect \u201cgate-crashers.\u201d) As he ran down the street Bennett heard two shots fired and \u201cfigured they were probably shooting Graham.\u201d He finally met an M. P., who \u201ccouldn\u2019t go over in that area\u201d but who called for some help. By that time Bennett \u201chad shocked nerves and everything\u201d; so he caught the bus back to Fort Bragg without ascertaining the fate of his companions.\nAfter defendant and Eobinson had obtained Grice\u2019s watch they returned to Graham, who had hidden his watch back of the front seat in the meantime. When they did not find his watch they beat him about the head, knocked him down into a mud puddle, and began to kick him. Grice came from around the rear of the car and told them to leave Graham alone; that they had already taken his money. When they turned their attention to Grice, Graham ran down the street. Being unable to find help or to get any response from any house, he retraced his steps. From two houses back he observed that the street was empty. He returned to the Savoy where he found David Grice requesting permission from one of the ticket sellers to call the police.\nAbout 2:00 a.m. Police Officer DeVane met Graham and Grice at the Savoy. On the way to the police station DeVane stopped at the home of Eobinson\u2019s grandmother, who gave him her family album of photographs. From this album Graham identified Eobinson as one of the men who had robbed him, and he went to the police station to sign a warrant for him. From there the two officers, Graham, and Grice went looking for the two men; Graham rode with DeVane and Grice with Acker. As the police cars approached the home of Eobinson\u2019s grandmother, Eobinson and Gainey were getting out of an automobile. As soon as one of the officers turned the spotlight on the two, Graham immediately told DeVane that they were the men who had robbed him, and Grice said to Acker, \u201cStop the car.\u201d Acker approached and ordered the men not to move. Eob-inson stopped, but Gainey struck the officer on the head and ran. DeVane arrested Eobinson. Acker pursued Gainey and arrested him. The two were then taken to the police station where they were placed in a room with three other Negro men who had been arrested and were being booked. When Grice entered the room he said to the police officers, \u201cThese are the two men that robbed us. This man here (Gainey) has my watch on.\u201d\nIn response to a call from the police about 5:00 a.m., Bennett went to the booking room of the police station where defendant and Robinson were with \u201ca lot of guys . . . public drunks and everything ... all Negroes.\u201d Bennett pointed to Robinson and Gainey as the men who had staged the robbery.\nAt the time of the trial Grice had been transferred to Hawaii. Graham and Bennett testified, and both positively identified Gainey and Robinson as the men who had attacked them and robbed Graham and Grice. Graham could not remember what kind of clothing the two men were wearing. Bennett said they both had on trench coats. He thought Robinson was wearing a dark one and Gainey a light one, \u201ca white or beige or something,\u201d but he was not sure.\nThe testimony of defendant Gainey, as a witness in his own behalf, tended to show: On the evening of 31 January 1969 he remained at his home with his wife, his1 brother Jesse, and Meng Harris from 8:00 p.m. until 2:00 or 2:30 a.m. on 1 February 1969, when he left with Wayman Robinson to go to the home of Robinson\u2019s mother. On the way they caught a ride with Willie Ray and were getting out of his car when they \u201cgot arrested.\u201d Defendant has never owned a light-colored trench coat or a white-handled automatic pistol. On 1 February 1969 he did own an eighteen-jewel, silver-colored wristwatch, which he had bought while he was in prison in Raleigh serving a sentence for an assault on a female. When the police approached and ordered him not to move he ran because he was on parole, and he was not supposed to be out after 12:00. He didn\u2019t rob Graham, Grice, and Bennett because he \u201cdidn\u2019t rob nobody.\u201d On cross-examination defendant said that he had been \u201cconvicted of nothing but assault cases.\u201d He could not say \u201cright off\u201d how many times, but one case involved shooting at a man with a .22 pistol, a revolver.\nDefendant\u2019s brother, Jesse James Gainey, and his wife testified that defendant was with them on 1 February 1969 until sometime between 1:00 and 2:00 a.m., when he left to go to the home of Robinson\u2019s mother; that he owned a wristwatch; and had been paid that day by Thomasson Plywood. Defendant testified that the officers found $80.00 of his wages on him.\nThe jury\u2019s verdict was guilty of armed robbery as charged. From a sentence of 20-25 years1, defendant appealed. The court entered an order permitting him to appeal at public expense and continuing Mr. Anderson as his attorney for that purpose. Mr. Anderson, failed to perfect the appeal in apt time. On 21 May 1970 Judge Edward B. Clark entered an order in which he found that defendant\u2019s counsel had not perfected his appeal in apt time; \u201cthat there was excusable neglect\u201d for the failure; and that defendant was lawfully entitled to appeal and was an indigent. Judge Clark thereupon entered an order reappointing J. William Anderson as defendant\u2019s attorney for the purpose of preparing a petition for a writ of certiorari to the North Carolina Court of Appeals. Presumably this order was entered as a result of defendant\u2019s petition, filed in December 1969 with the judge presiding in the Superior Court of Cumberland County, that defendant himself be furnished the transcript of his trial and copies of the documents constituting the record proper. Approximately one year later, on 4 May 1971, the petition for certiorari was filed with the Court of Appeals, which allowed the petition on 5 May 1971. In due course the appeal was docketed in the Court of Appeals and transferred to us under the general referral order then in effect.\nAttorney General Robert Morgan and Staff Attorney Bur-ley B. Mitchell, Jr., for the State.\nJ. William Anderson for defendant appellant." }, "file_name": "0366-01", "first_page_order": 386, "last_page_order": 395 }