{ "id": 8550696, "name": "STATE OF NORTH CAROLINA v. ALBERT HUMPHREY", "name_abbreviation": "State v. Humphrey", "decision_date": "1971-12-15", "docket_number": "No. 713SC608", "first_page": "138", "last_page": "142", "citations": [ { "type": "official", "cite": "13 N.C. App. 138" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "23 S.E. 2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "pin_cites": [ { "parenthetical": "citing cases" } ], "opinion_index": 0 }, { "cite": "222 N.C. 455", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630934 ], "year": 1942, "pin_cites": [ { "parenthetical": "citing cases" } ], "opinion_index": 0, "case_paths": [ "/nc/222/0455-01" ] }, { "cite": "64 S.E. 2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "233 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613571 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/233/0577-01" ] }, { "cite": "30 S.E. 2d 43", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "opinion_index": 0 }, { "cite": "224 N.C. 304", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600711 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/nc/224/0304-01" ] }, { "cite": "175 S.E. 81", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "opinion_index": 0 }, { "cite": "206 N.C. 726", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632674 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/nc/206/0726-01" ] } ], "analysis": { "cardinality": 430, "char_count": 8880, "ocr_confidence": 0.56, "pagerank": { "raw": 1.8349890066261847e-07, "percentile": 0.7212760280618677 }, "sha256": "ef9380058707c6d406088e5f990bf99f5d389fff0aa05aef3e50bb9bf3bba687", "simhash": "1:d76eec29b25784f2", "word_count": 1515 }, "last_updated": "2023-07-14T21:18:15.024983+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Morris and Parker concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ALBERT HUMPHREY" ], "opinions": [ { "text": "CAMPBELL, Judge.\nThe defendant raises two questions on appeal:\n1. Whether the trial court committed prejudicial error in allowing the State\u2019s witness to give hearsay evidence of flight and in instructing the jury on the consideration of evidence of flight.\n2. Whether the court\u2019s instructions to the jury on the principles of alibi were proper.\nOver objection by defendant, the trial court allowed the State\u2019s witness, Ark Smith, to testify that police officers told him they would \u201c ... try to stop him [defendant] at the airport.\u201d The defendant contends that this testimony was hearsay and therefore inadmissible, and that this testimony was made prejudicial to the defendant when the judge instructed, the jury that it could consider evidence of flight, together with other facts, in determining whether the combined circumstances amounted to an admission or consciousness of guilt.\nEvidence is- hearsay when its probative force depends in whole or in part on the competency and credibility of some person other than the witness from whom the information is sought. It is incompetent to establish any specific fact susceptible of being proved by witnesses who speak from their own knowledge. State v. Kluttz, 206 N.C. 726, 175 S.E. 81 (1934). We agree with defendant that the testimony in this case is hearsay and should have been excluded from evidence. There was, however, ample evidence of flight admitted without objection by defendant. There was testimony that defendant had told Smith he was going back to New York and was going to catch a 1:00 o\u2019clock plane. Smith told this to the police. There was also evidence that defendant ran after taking Smith\u2019s watch and that all three of the men ran off together after robbing Smith. Conceding that it was error to admit the evidence objected to by defendant, there is still ample evidence of flight to be considered by the jury. The error in the admission of testimony was rendered harmless by the later admission of substantially similar testimony without objection. State v. Gordon, 224 N.C. 304, 30 S.E. 2d 43 (1944). The charge to the jury on consideration of the evidence of flight was based on ample evidence in addition to that objected to by defendant. We find no reversible error in the admission of the challenged testimony or in the charge to the jury on the issue of flight.\nThe defendant also assigns as error the trial court\u2019s charge to the jury on alibi. The defendant contends that it was error for the trial court to instruct, \u201cthat if, upon considering the evidence with respect to the alibi, you have a reasonable doubt of the defendant\u2019s presence there or participation in the crime charged, you must find him not guilty.\u201d It is argued that this instruction limited the jury\u2019s consideration of evidence of alibi and required the jury to consider it independently of other evidence and that a proper instruction would charge the jury to consider the evidence of alibi together with all the other evidence.\nWe agree that a better instruction would state to the jury, explicitly, that the evidence of alibi should be considered with all the other evidence. In State v. Bridgers, 233 N.C. 577, 64 S.E. 2d 867 (1951), the North Carolina Supreme Court suggested the proper form for a charge on alibi:\n\u201c \u2018Therefore, the defendant\u2019s evidence of alibi is to be considered by you like any other evidence tending to refute or disprove the evidence of the State. And if upon consideration of all the evidence in the case, including the defendant\u2019s evidence in respect to alibi, there arises in your minds a reasonable doubt as to the defendant\u2019s guilt, he should be acquitted.\u2019 \u201d\nWe do not, however, agree with the defendant that the charge in this case is reversible error. The charge to the jury must be considered as a whole, in the same connected way as given to the jury with the presumption that the jury did not overlook any portion of it and if, when so construed, it presents the law fairly and correctly, there is no ground for reversal, although some of the expressions, when standing alone, may be regarded as erroneous. State v. Hairston, 222 N.C. 455, 23 S.E. 2d 885 (1942) (citing cases). In examining the charge in the case before us, we find that the trial judge instructed the jury, in numerous instances, that they should consider \u201call the evidence\u201d or \u201cthe evidence\u201d (unqualified). We are of the opinion that in so doing the trial judge sufficiently emphasized to the jury that their verdict should be based on all the evidence. It is to be noted that the charge was correct in the essentials that alibi is not an affirmative defense and that the burden is not on the defendant to prove the alibi but that the burden is on the State to prove the defendant\u2019s presence at and participation in the crime charged in the indictment. We conclude that, although the charge on alibi was not perfect, when considered with the remainder of the charge it presented a fair and accurate statement of the law and was not reversible error.\nWe commend the instruction quoted from State v. Bridgers, supra, to the attention of trial judges for instructions on alibi.\nIn the entire trial we find,\nNo error.\nJudges Morris and Parker concur.", "type": "majority", "author": "CAMPBELL, Judge." } ], "attorneys": [ "Attorney General Robert Morgan by Assistant Attorney General William W. Melvin and Associate Attorney Louis W. Payne, Jr., for the State.", "David S. Henderson for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ALBERT HUMPHREY\nNo. 713SC608\n(Filed 15 December 1971)\n1.Criminal Law \u00a7 46\u2014 evidence of flight \u2014 hearsay testimony \u2014 harmless error\nThe admission of hearsay testimony relating to defendant\u2019s plans for flight, although erroneous, was not prejudicial to defendant in this robbery prosecution, where there was the subsequent admission of similar testimony without objection.\n2. Criminal Law \u00a7 73\u2014 hearsay testimony\nEvidence is hearsay when its probative force depends in whole or in part on the competency and credibility of some person other than the witness from whom the information is sought.\n3. Criminal Law \u00a7 36.1\u2014 alibi \u2014 instructions\nAlthough trial court\u2019s instructions on alibi failed to charge the jury to consider the evidence of alibi together with all other evidence in the case, the charge, when taken as a whole, sufficiently instructed the jury that their verdict should be based on all the evidence.\nAppeal by defendant from. Bouse, Judge, May 14, 1971 Session of Craven Superior Court.\nDefendant was charged in a bill of indictment with common law robbery.\nThe State introduced evidence tending to show that the defendant met Ark Smith for the first time in the Moonlight Inn Club in New Bern. The two remained there about an hour and then left to attend a party at a place referred to as the Center. They were joined by two other men as they left the Moonlight Inn; and upon arriving at the Center, they found the party to be over and the area deserted. The three men then knocked Ark Smith to the ground striking him several times and the defendant took Ark Smith\u2019s wallet and watch and ran. The defendant was arrested three days later.\nThe defendant introduced evidence tending to show that he met Ark Smith at the Moonlight Inn at around 10:00 p.m. on March 21, 1971; that Ark Smith was \u201chigh\u201d; that the two of them had several drinks there and at the Bib House; that the defendant left Ark Smith and went alone back to the Moonlight Inn and then to a place known as Lindberg\u2019s arriving at approximately 11:00 or 11:15 p.m. and that he had not seen Ark Smith again that evening after leaving the Bib House.\nAt the trial Ark Smith was permitted to testify, over defendant\u2019s objections, that the police officers investigating the alleged offense told him, \u201cthey would go over there and try to identify him by the clothes he was wearing and try to stop him at the airport.\u201d\nThe trial court charged the jury on the effect of evidence of flight.\nThe trial court gave the following charge on the issue of alibi:\n\u201cNow the Court charges you that the defendant contends that he was at some other place at the time that the alleged robbery was to have taken place. This is known as an alibi. The word \u2018alibi\u2019 simply means somewhere else. The burden of proving an alibi does not rest upon the defendant. To establish the defendant\u2019s guilt, the State must prove beyond a reasonable doubt that the defendant was present at, and participated in, the crime charged. The defendant\u2019s contention that he was not present and did not participate is simply a denial of facts essential to the State\u2019s case. Therefore, I charge you that if, upon considering the evidence with respect to the alibi, you have a reasonable doubt of the defendant\u2019s presence there or participation in the crime charged, you must find him not guilty.\u201d\nThe jury returned a verdict of guilty and judgment was entered imposing a prison sentence.\nFrom the verdict and judgment, defendant appeals.\nAttorney General Robert Morgan by Assistant Attorney General William W. Melvin and Associate Attorney Louis W. Payne, Jr., for the State.\nDavid S. Henderson for defendant appellant." }, "file_name": "0138-01", "first_page_order": 162, "last_page_order": 166 }