
    STATE v. HOMER KEE and GUS MATTHEWS.
    (Filed 21 November, 1923.)
    1. Evidence! — Maps—Illusti’ations—Witnesses—Attorney and Client— Criminal Haw — Robbery.
    A witness may illustrate bis testimony as to objects and their relative position material to tbe inquiry, by a map made by another than himself, when he testifies to the accuracy of the map in relation to his evidence, and directly of matters within his own knowledge, and the map is confined to this purpose and excluded as substantive evidence; and an attorney under a like restriction may in like manner illustrate his argument by drawing a diagram on the floor before the jury.
    2. Evidence — Indictment—Witnesses—Endorsements—Criminal Haw.
    Where two bills of indictment have been drawn for. the same offense at different terms, and one of them has been ignored by the grand jury, but the other returned “a true bill,” it was competent for the State to show by endorsement on the indictment being tried that the names of additional witnesses appeared thereon.
    Appeal by defendant from Finley, J., at April Term, 1923, of Guil-eoed.
    Criminal action. Tbe first count -in tbe indictment charged tbe defendants with tbe larceny of money, tbe property of tbe Bank of Sum-merfield, and the second count with receiving the money knowing it to have been stolen. There was a general verdict of guilty, and from the judgment the defendant Matthews appealed.
    
      Attorney-General Manning and Assistant Attorney-General Nash for the State.
    
    
      Bennett & Porter and E. Garland Brown for the appellant.
    
   Adams, J.

About eleven o’clock in the forenoon of 29 May, 1922, a young man who was unknown to the occupants entered the business apartment of the Bank of Summerfield, holding in his hand a “blue steel pistol with a six-inch barrel of .38 caliber.” After trying in vain to lock the cashier and a director in the vault he retired from the bank with bills amounting to sixteen hundred and fourteen dollars. In November or December he was imprisoned in the jail of Rockingham County and was there identified as the defendant Kee.

Both defendants lived in High Point within a hundred yards of each other and were not unacquainted. About two hours before the larceny occurred they were seen together near Summerfield in an Oldsmobile owned by Matthews. They were then on the Hillsboro road, which at a short distance from the village intersects with the road from Greensboro. After overtaking or meeting two witnesses by whom they were identified", the defendants separated. One got out of the car and went towards Summerfield; the other turned the car around but finally arrived at the same destination by another route. Upon his arrival there Kee tarried a short while near a warehouse and afterwards went to a lumber pile from which he had an unobstructed view of the bank. When he entered the building he went from this pile of lumber and passed by it in making his escape after the larceny was committed. There were several circumstances tending to show that he and Matthews were acting in concert and that the raid on the bank was the result of their criminal conspiracy. There was evidence to the contrary, but the exceptions do not require its recital.

The conduct of the defendants in approaching the village and their whereabouts after arriving there were momentous to the prosecution, and, for the purpose of showing the relative situation of several objects, resort was had to maps or-diagrams which were used to illustrate the testimony of certain witnesses. It is argued by the-appellant that the opposing attorneys prepared a diagram which was used by a witness during his examination, and that it should have been prepared by the witness himself. But the witness said that he knew where the various objects were situated and that “the map is a pretty fair representation” of them. Moreover, his Honor carefully restricted the testimony to the situation of objects of which the witness had personal knowledge, and emphasized tbe ruling that tbe diagram was not substantive evidence but used only for tbe purpose of illustration. In tbe admission of tbis evidence there was no error. S. v. Whiteacre, 98 N. C., 753; Dobson, v. Whisenhant, 101 N. C., 646; Burwell v. Sneed, 104 N. C., 118; Riddle v. Germanton, 117 N. C., 388; Andrews v. Jones, 122 N. C., 666; S. v. Harrison, 145 N. C., 408. In S. v. Rogers, 168 N. C., 114, the witness testified that tbe map used was “approximately correct,” and tbe court said, “It could hardly have been otherwise, being made at tbe time and merely to illustrate bis evidence. Tbis did not render tbe map incompetent as a part of bis testimony, for tbe defendant doubtless made tbe most of it by arguing that therefore bis whole testimony was only approximately correct.”

During bis argument one of tbe attorneys for. tbe prosecution drew a diagram on tbe floor. Tbe court permitted its use only for tbe purpose of illustrating tbe State’s contentions as to tbe location of tbe premises, and in doing so respected tbe principle maintained in tbe decisions which have just been cited. His Honor held expressly that tbe diagram was not evidence. Tbe objection to tbis testimony is therefore without merit.

There is one other exception.. At different terms two bills of indictment, charging tbe defendant Matthews with tbe offense of which be was convicted, were sent to tbe grand jury. Tbe first was ignored; tbe second was returned “a true bill.” On the cross-examination of a witness for tbe State tbe defendant proved tbe.return of tbe first bill and tbe discharge of tbe defendant. Tbe State on tbe redirect examination was allowed to show, not What took place, in tbe graUd jury room or what any member of tbe grand jury said, but merely that on tbe second bill were endorsed tbe names of additional witnesses. We see no sufficient cause for bolding that tbis evidence was incompetent.

Tbe record is free from reversible error. Let tbis be certified.

No error.  