State v. Davis, 8 N.C. App. 99 (1970)

May 6, 1970 · North Carolina Court of Appeals · No. 7027SC78

8 N.C. App. 99

STATE OF NORTH CAROLINA v. RICHARD W. DAVIS

No. 7027SC78

(Filed 6 May 1970)

Criminal Law § 167— prejudicial error in case consolidated with six other cases

■ Any prejudicial error in the trial of a case does not entitle defendant to a new trial where the case was consolidated for judgment with six other cases in which defendant entered pleas of guilty and thereafter made no exceptions or assignments of error.

Appeal by defendant from Ervin, J., 4 September 1969 Session of GastoN County Superior Court.

Nine true bills of indictment were returned against defendant at the 21 April 1969 Session of Gaston County Superior Court. Each bill, proper in form, charged defendant with forgery and with uttering a forged check. The cases came on for trial before the Honorable Hubert E. May, Judge Presiding, at the 29 May 1969 Session of Gaston Superior Court. Upon the call of the cases for trial the solicitor announced in open court that at that session only case No. 69CR4368 would be tried and in that case the State would seek a conviction only on the count charging defendant with uttering a forged check. To this defendant entered a plea of not guilty. The jury returned a verdict of guilty. The court thereupon, on 2 June 1969, ordered defendant committed to the Diagnostic Center of the Department of Correction for a period of 60 days for a pre-sentence diagnostic study as provided by G.S. 148-12.

After the completion of the diagnostic study, defendant was returned to Gaston County, and at the 4 September 1969 Session of Superior Court appeared before the Honorable Sam J. Ervin, III, Judge Presiding, and entered pleas of guilty to the counts of uttering a forged instrument as charged in the remaining eight bills of indictment. In case No. 69CR4351 prayer for judgment was continued for five years. In case No. 69CR3979 defendant was given a sentence of from seven to ten years imprisonment and the sentence was suspended for five years on certain conditions. The remaining cases, including case No. 69CR4368 wherein the defendant had been found guilty at the 21 April 1969 Session, were consolidated for judgment and defendant was sentenced to an indeterminate sentence of not less than seven nor more than ten years in custody. Defendant excepted to the judgment imposing active sentence and appealed.

Robert Morgan, Attorney General, by Harrison Lewis, Deputy Attorney General, and Claude W. Harris, Trial Attorney, for the State.

J. Ben Morrow for defendant appellant.

GRAHAM, J.

All of defendant’s exceptions and assignments of error relate to the trial of case No. 69CR4368 at the 21 April 1969 Session of Gaston Superior Court. Even if prejudicial error were found in the trial of that case it would avail defendant of little or no relief as that case was consolidated for judgment with six other cases in which defendant entered pleas of guilty. No exception or assignments of error were made with respect to any of the cases in which he pleaded guilty.

We have nevertheless carefully reviewed each of defendant’s assignments of error and have found them to be without merit.

No error.

BROCK and Britt, JJ., concur.