#### STATE OF NORTH CAROLINA v. JIMMIE ELDON DAVIS.

(Filed 22 November, 1967.)

Appeal by defendant from *Johnston, J.,*April, 1967 Criminal Session, Mooee Superior Court.

The record and the addendum thereto disclose that these prosecutions originated before the Recorder’s Court of Moore County upon warrants which charged that at 10:10 p.m. on August 6, 1966: (1) the defendant did unlawfully and wilfully operate a Chevelle Automobile, N. C. License No. EF 9548 on N. C. Highway No. 27 near Robbins in a prearranged speed competition with another vehicle operated by Robert Milton White; and (2) did operate a motor vehicle at a greater rate of speed than was prudent; to wit, in excess of 120 m.p.h. against the form of the statute in such cases made and provided . . . contrary to the law and against the peace and dignity of the State.

At the trial in the Recorder’s Court on October 16, 1966, the Recorder found probable cause on the racing charge, and bound the defendant to the Superior Court. The Recorder found the defendant guilty of speeding in excess of 120 m.p.h. in a 55 m.p.h. zone *112and imposed a prison sentence of four months. The defendant appealed the conviction on this charge to the Superior Court.

In the Superior Court the case was remanded to the Recorder’s Court for final adjudication on the prearranged racing charge. On December 12, 1966 the Recorder’s Court found the defendant guilty of prearranged racing, and imposed a prison sentence of six months. The judgment provided the four months sentence for speeding should run concurrently with six months sentence for racing. The defendant again appealed both convictions to the Superior Court.

In the Superior Court the State offered evidence of patrolman T. S. Clark who testified that at 10:10 p.m. on August 6, 1966 the defendant Davis, in his Chevelle, lined up on the left side of Highway 27 and Robert Milton White, in a Ford Fairlane, lined up on the right, and at the word “go” spoken by someone present, both vehicles, running side by side, headed west, kept abreast for half a mile when Davis pulled out in front of White. The patrolman pursued the racers and, when they separated, he continued after Davis, whose speed reached 120 m.p.h. Davis escaped.

The defendant testified he was not at or near Robbins at the time testified to by the officer, but was in Asheboro from about 7:00 and on that night took Bonnie West to a dance at Perry’s on the Guilford-Randolph line and did not leave the dance until 10:30 that night. He offered witnesses corroborating his story. He also offered evidence of his good character. He did admit, however, he owned a Chevelle automobile.

The jury returned a verdict of guilty. From the judgment, the defendant appealed.

*Thomas Wade Bruton, Attorney General; William W. Melvin, Assistant Attorney General; T. Buie Costen, Staff Attorney, for the State.*

*Ottway Burton for defendant-appellant.*

Per Curiam.

The evidence of the patrolman made out a clear case of pre-arranged racing and of speeding. However, in fairness to the defendant, it must be admitted his evidence, supported by a number of witnesses, tended strongly to show his presence elsewhere at the time of the offenses charged. The evidence was sharply conflicting with the testimony of the highway patrolman. The jury, as was its function, resolved the conflict against the defendant. Error of law in the trial does not appear.

No error.