State v. Pass , 14 N.C. App. 635 ( 1972 )

PARKER, Judge.

Defendant contends error was committed in overruling his objections to evidence concerning State’s Exhibit 5. In support of this contention he argues that the testimony of the cashier of the motel restaurant as to the date she placed the check in the cash box and the testimony of the operator of the grocery store as to the date he cashed the check for the person he identified as the defendant was so “vague and conjectural” as to render any evidence concerning the check irrelevant to prove defendant was the person who perpetrated the robbery. We do not agree.

The check was dated 18 December 1968, which was on Friday, a payday at the motel restaurant. It was a payroll check payable to one of the waiters at the restaurant. The cashier of the restaurant testified she cashed it for the payee, either on Friday, 13 December, or Monday, 16 December 1968. She testified that after cashing the check, she placed it in the cash box and that it was in the cash box on the night of 16 December 1968, when she delivered the box to the night clerk of the motel. The robbery occurred a few hours later, in the early morning of 17 December 1968. In view of the cashier’s positive testimony that the check was in the cash box on the night of 16 December 1968 when she delivered it to the night clerk, any uncertainty in her testimony as to the date she actually cashed it for her fellow employee was immaterial.

Similarly, we find no such vagueness as defendant contends in the testimony of the grocery store operator as to the date he cashed the check for the person he positively identified as the defendant. He testified that he knew that he cashed the check in December 1968, on a Friday, since that is the day of the week when the Seven-up people service his store, and he gave them the check in payment upon his bill on the same day he cashed it for defendant. The night clerk of the motel testified he identified defendant as the robber in a lineup at the police station on 22 December 1968. From all of the evidence the jury could find that defendant was in possession of the check and presented it to the grocery store operator to be cashed on Friday, 20 December 1968. The evidence concerning the check was relevant and competent to prove that defendant was the person who committed the robbery.

On cross-examination of the State’s witness, King, a detective with the Durham Police Department, defendant’s counsel brought out the fact that the witness, in attempting to find out if defendant was employed on 16 December 1968, had talked with a Mr. Justice. On redirect examination the solicitor was permitted, over defendant’s objection, to have the witness identify Mr. Justice as a State Parole Officer. Defendant contends that this was error in that the jury could infer that he had previously been convicted of a crime. We find it unnecessary to decide whether error was committed or whether defendant’s counsel had himself opened the door to the evidence to which he now objects, since defendant in this case suffered no prejudice. He subsequently testified and freely admitted that he had been released from prison on parole on 22 November 1968.

Defendant’s remaining assignments of error have not been brought forward or discussed in his brief and are deemed abandoned. Rule 28, Rules of Practice in the Court of Appeals. Nevertheless, we have carefully reviewed the entire record and find no prejudicial error. The indictment was in proper form to charge the offense of armed robbery. Defendant was positively identified by the victim of the robbery, who had ample opportunity to observe him at the time the robbery was committed. No objection has been made to the lineup identification, which took place at the police station on 22 December 1968 in the presence of defendant’s counsel. The sentence imposed was within statutory limits. In defendant’s trial and the judgment imposed we find

No error.

Chief Judge Mallard and Judge Morris concur.