{
  "id": 8549592,
  "name": "STATE OF NORTH CAROLINA v. ROBERT ELIHU MOREHEAD",
  "name_abbreviation": "State v. Morehead",
  "decision_date": "1972-09-20",
  "docket_number": "No. 7218SC608",
  "first_page": "181",
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    "name": "North Carolina Court of Appeals"
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  "last_updated": "2023-07-14T16:27:31.279819+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Brock and Hedrick concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. ROBERT ELIHU MOREHEAD"
    ],
    "opinions": [
      {
        "text": "MORRIS, Judge.\nDefendant assigns as error the court\u2019s allowing into evidence hearsay testimony of a radio communication to a police officer after objection had been made and after the trial judge had warned the witness not to relate hearsay and failing properly to instruct the jury to disregard such testimony. The record reveals the following:\n\u201cMr. Clifford:\nQ. Go ahead and describe what you did when you got there, Mr. Fulcher?\nA. (By the Witness) I was working the area close to A. & T. College, and I was on Sullivan Street this night around eight o\u2019clock and heard Officer Hill in Car 28 receive a call.\nMr. Shepherd: Object\nThe Court: Don\u2019t say whatever \u2014 as a result of some call, did you go down there, Mr. Fulcher? That is all we want.\nThe Witness: Right. I heard on the radio there was a larceny from an auto.\nThe Court: Sustained. And I will instruct the jury not to consider what he said.\nI have instructed you twice to just tell what you did after you got there.\u201d (Emphasis added.)\nDefendant\u2019s contention that the court admitted hearsay evidence over objection is untenable. It is clear from the record that the court sustained defendant\u2019s objection in the first instance and, iii the second, sustained an objection defendant had failed to make. In the same breath the court instructed the jury \u201cnot to consider what he said.\u201d\nWhere a court definitely instructs a jury at the time of the withdrawal of testimony not to consider it, there is a presumption on appeal that the jury followed such instruction, unless prejudice appears or is shown by the appellant in some way. State v. Vicks, 223 N.C. 384, 26 S.E. 2d 873 (1943). Yet defendant contends that the court\u2019s instruction failed to specify what the jury was to disregard. On the face of the record this exception is untenable. In the context above what could be more specific than, \u201c[a]nd I will instruct the jury not to consider what he said.\u201d In any event, the testimony was nonprejudicial to the defendant.\nDefendant\u2019s second assignment of error is that the court erred in admitting into evidence the wire believed to be the instrument used in the alleged crime absent a proper identification. State\u2019s witness Eddie Fowler testified, \u201c[Y]es, I can identify State\u2019s Exhibit 3. It looks like the wire you got there\u2014 looks just like it.\u201d While the court at that point refused to admit the wire into evidence, the court later did so upon the testimony of Officer Davis, who stated that he was given the same wire on the night in question at the scene of defendant\u2019s arrest, even though he wasn\u2019t positive who handed it to him. State\u2019s Exhibit 3 was sufficiently identified by the witnesses, and any object which has a relevant connection to the case is admissible in evidence. State v. Jarrett, 271 N.C. 576, 157 S.E. 2d 4 (1967), cert. denied Manning v. North Carolina, 88 S.Ct. 128, 389 U.S. 865, 19 L.Ed. 2d 135 (1967).\nDefendant\u2019s remaining assignments of error are to the failure of the court to dismiss the case as of nonsuit and to its refusal to set the verdict aside and arrest judgment. These assignments are all without merit. There was plenary evidence to warrant submission of the case to the jury and to substantiate the verdict.\nNo error.\nJudges Brock and Hedrick concur.",
        "type": "majority",
        "author": "MORRIS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Morgan, by Associate Attorney Boylan, for the State-.",
      "J. Dale Shepherd, Assistant Public Defender, Eighteenth Judicial District, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ROBERT ELIHU MOREHEAD\nNo. 7218SC608\n(Filed 20 September 1972)\n1. Criminal Law \u00a7 162\u2014 admission of evidence over objection \u2014 failure of record to support contention\nDefendant\u2019s contention that the court admitted hearsay evidence over objection is untenable where the record shows the court sustained objections to the evidence and instructed the jury \u201cnot to consider what he said.\u201d\n2. Criminal Law \u00a7 96\u2014 withdrawal of evidence \u2014 instructions to jury \u2014 presumption\nWhere the court instructs the jury at the time of the withdrawal of testimony not to consider it, there is a presumption on appeal that the jury followed such instruction unless prejudice appears or is shown by appellant.\n3. Criminal Law \u00a7 96\u2014 instruction to disregard testimony \u2014 sufficiency\nTrial court\u2019s instruction upon sustaining an objection to hearsay testimony, \u201cAnd I will instruct the jury not to consider what he said,\u201d sufficiently informed the jury what it was to disregard.\n4. Criminal Law \u00a7 42\u2014 sufficiency of identification of exhibit\nA wire allegedly used to gain entry to a locked automobile was sufficiently identified for its admission in evidence where a witness testified, \u201cIt looks like the wire you got there,\u201d and a police officer testified that he was given the same wire at the scene of defendant\u2019s arrest, although he wasn\u2019t positive who handed it to him.\nAppeal by defendant from Armstrong, Judge, 27 March 1972 Criminal Session of Guilford County Superior Court.\nThe defendant was charged with breaking and entering and larceny from a motor vehicle and entered a plea of not guilty.\nEvidence for the State tended to show that defendant gained entry to a locked automobile by the use of a wire and that defendant removed a tape player and one tape therefrom. The State\u2019s evidence also tended to show that defendant\u2019s activity was observed by one Eddie Fowler, who, after notifying the police, held defendant at the point of an unloaded shotgun until police arrived at the scene.\nDefendant did not testify and offered no evidence in his behalf. The jury found him guilty on both counts, and from a judgment imposing a prison sentence of not less than two nor more than five years, defendant appealed.\nAttorney General Morgan, by Associate Attorney Boylan, for the State-.\nJ. Dale Shepherd, Assistant Public Defender, Eighteenth Judicial District, for defendant appellant."
  },
  "file_name": "0181-01",
  "first_page_order": 205,
  "last_page_order": 207
}