Appeal
from Superior Court, Halifax County; W. H. S. Burgwyn
Special Judge.
Anton
Proctor and others were charged with offenses and Walter
"Doodle" Wells was convicted of assault and robbery
with firearms and of conspiring to commit an assault and
robbery with firearms, and he appeals.
No
error.
Where
accused's brief presented only one exception and
assignment of error, other exceptions not set out in brief or
in support of which no reason or argument was stated or
authority cited were abandoned. Rules of Practice in the
Supreme Court, rule 28.
The
bills of indictment against the defendants charged them (1)
assault and robbery with firearms, N.C.Code 1935 (Michie), §
4267(a); and (2) conspiring together to commit an assault and
robbery with firearms. The defendants Anton Proctor and Fritz
Brinkley pleaded guilty to the charges and were duly
sentenced. Frank Faulk and Walter "Doodle" Wells
pleaded not guilty. The court, at the conclusion of the
state's evidence, ordered a verdict of not guilty as to
Frank Faulk. The jury convicted Wells, who was duly
sentenced. The defendant Wells excepted, assigned errors, and
appealed to the Supreme Court. The necessary facts will be
set forth in the opinion.
Allsbrook & Benton, of Roanoke Rapids, for appellant.
A. A
F. Seawell, Atty. Gen., and Harry McMullan and Emmett C
Willis, Asst. Attys. Gen., for the State.
CLARKSON
Justice.
Rules
of Practice in the Supreme Court, 200 N.C. 831, rule 28.
Appellant's brief, in part: "Exceptions in the
record not set out in appellant's brief, or in support of
which no reason or argument is stated or authority cited
will be taken as abandoned by him."
In
defendant's brief there is only one exception and
assignment of error, which we think cannot be sustained,
viz.: "The state contends that you ought to be convinced
of the defendant's guilt beyond a reasonable doubt. The
state contends that while the accomplices, Brinkley and
Proctor are men who have engaged in the bad things of life;
that Brinkley is a bad man and has been to the penitentiary
on more than one occasion, and that Proctor, while a young
man, has also been engaged in things which he should not have
done, and that he served sentences either on the
roads or in jail, but the state contends Walter Wells is a
man of similar character. The state contends that Wells
associated with these men and well knew the men; that he
lived in the same community with them, knows their reputation
and knows they have been to the penitentiary and to the
roads, if they have, and knows for what they were sent, and
the state contends he would not associate and be riding
around, if you find beyond a reasonable doubt he was
associating and riding around with them, unless they were of
similar character, and the state contends 'birds of a
feather flock together' applies in this case. That while
up to this time Wells may have escaped punishment for
anything he may have done or been connected with, the state
contends on this occasion he was with these men."
Fritz
Brinkley, who entered a plea of guilty, testified in part
that he had known Wells some eighteen years. They were both
reared in and near Rocky Mount, N.C. "Anton Proctor and
'Doodle' Wells were with me the night I held up the
Texaco Filling Station at Enfield and robbed Jack Hearne.
'Doodle' Wells drove the automobile. At the time
Anton Proctor and I were in the filling station Wells was
sitting under the wheel of the automobile. The automobile was
a Ford, 1936 black coach. * * * We were drinking. When we
left Rocky Mount we went out the Battleboro Highway toward
Enfield. I think Enfield is 19 or 20 miles from Rocky Mount.
When we saw this filling station open at that time of morning
is when Wells, Proctor and I made the agreement to hold up
the filling station. We made the agreement as we were passing
by the filling station. We rode on about a mile or a mile and
a half and then turned and came back to the filling station.
At the time Walter Wells and Anton Proctor each had guns in
the car. Walter Wells drove the car right to the front door
as you go into the filling station. I got out, went into the
filling station and called for a Coca-Cola, and as soon as he
reached for the Coca-Cola and before he handed it to me he
was in the back of the filling station, and I drew the gun on
him and said, 'Stick 'em up.' I had the gun with
me that I got off of Walter Wells when I left the car. After
I put the gun on the men in the filling station, Anton
Proctor is the one that carried out the cash register and
shotgun. They are all I know that he carried out. He put them
in the back of the black Ford. * * * When I got back in the
car Walter Wells was under the steering wheel, Anton Proctor
was in the back seat, the cash register and gun were in the
back seat. After we got in the car we did not stay any longer
than it took us to get away. On the way back to Rocky Mount
from Enfield we stopped near the train station at Battleboro
on the highway and split what was in the cash register. * * *
Proctor got out of the car, and they put me out about 5 1/2
miles from Rocky Mount, and 'Doodle' Wells left in
the car. The last time I saw the car 'Doodle' Wells
was driving it and going toward Rocky Mount. Proctor and I
stayed there until daybreak and then went back to town. That
is all I know about it."
Brinkley
was corroborated by Anton Proctor. Corroborative evidence was
given also by K. M. Sutton, E. M....
