{
  "id": 8549812,
  "name": "STATE OF NORTH CAROLINA v. JERRY ELLISON and CHARLES ELLISON",
  "name_abbreviation": "State v. Ellison",
  "decision_date": "1973-07-25",
  "docket_number": "No. 7324SC425",
  "first_page": "38",
  "last_page": "41",
  "citations": [
    {
      "type": "official",
      "cite": "19 N.C. App. 38"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "187 S.E. 2d 756",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1972,
      "opinion_index": 0
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      "cite": "281 N.C. 100",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1970,
      "opinion_index": 0
    },
    {
      "cite": "276 N.C. 381",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8561475
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      "year": 1970,
      "opinion_index": 0,
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        "/nc/276/0381-01"
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    {
      "cite": "172 S.E. 2d 37",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1970,
      "pin_cites": [
        {
          "page": "41"
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      ],
      "opinion_index": 0
    },
    {
      "cite": "276 N.C. 308",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8561047
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      "year": 1970,
      "pin_cites": [
        {
          "page": "314"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/276/0308-01"
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  "analysis": {
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  "last_updated": "2023-07-14T21:32:34.966448+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Britt and Vaughn concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JERRY ELLISON and CHARLES ELLISON"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nDefendant, Jerry Ellison, contends the trial court erred:\n\u201c . .in allowing one of the State witnesses, to-wit, Johnnie Carroll, Chief Deputy of Watauga County, to testify as to what the defendant, Jerry Ellison, told him on July 17, 1972, about taking a 22 pellet gun from the campground, without first making a finding that the statement was voluntarily made.\"\nPrior to the admission of the challenged testimony, the trial court conducted a voir dire hearing in the absence of the jury and, after hearing testimony of Deputy Sheriff Carroll, found and concluded that both defendants were fully advised of their constitutional rights and \u201cthat any statement which either Jerry Ellison or Charles Ellison made to the officer was freely, understandingly and voluntarily given, without any threat or without any promise and may be received by this jury.\u201d\nThere was plenary competent evidence to support these findings and conclusions of the trial court. \u201cWhen the trial judge\u2019s findings are based on competent evidence in the record, they are conclusive, and the reviewing court cannot properly set aside or modify such findings.\u201d (Citations omitted.) State v. McRae, 276 N.C. 308, 314, 172 S.E. 2d 37, 41 (1970).\nThe record does not show clearly that the statement of Jerry Ellison challenged by this exception related to the finding that \u201cany statement which either Jerry Ellison or Charles Ellison made to the officer was freely, understandingly and voluntarily given . ... \u201d The record shows, however, that when Jerry Ellison told Deputy Carroll that he took the pellet gun he had been advised of his constitutional rights. Moreover, Deputy-Sheriff Carroll had already testified that the defendants admitted \u201cthey were there\u201d (referring to the site of the robbery). Assuming, arguendo, the court erred in admitting the challenged statement, it has not been made to appear that defendant was prejudiced thereby and that a different result likely would have ensued had this evidence been excluded. State v. Barrow, 276 N.C. 381, 172 S.E. 2d 512 (1970). Therefore, any error committed was harmless beyond a reasonable doubt. State v. Hudson, 281 N.C. 100, 187 S.E. 2d 756 (1972); State v. Barrow, supra.\nDefendants assign as error the trial court\u2019s instructions on the law of aiding and abetting.\nWe find and hold that when considered contextually, the court properly declared and explained the law of aiding and abetting arising on the evidence in the case.\nDefendants contend the trial court erred in failing to instruct the jury that felonious intent is an essential element of armed robbery.\nIn various portions of the charge before and after the challenged instructions, the trial court properly charged the jury that felonious intent is a constituent element of the offenses of armed and common l^w robbery. Therefore, when considered contextually, the instructions of the trial court are free from prejudicial error.\nDefendants assign as error the denial of their motions for judgment as of nonsuit.\nThere was plenary competent evidence to require submission of the case to the jury and to support the verdict.\nDefendants had a fair trial free from prejudicial error.\nNo error.\nJudges Britt and Vaughn concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Robert Morgan and Assistant Attorney General Dale P. Johnson for the State.",
      "Charles C. Lamm, Jr., for defendant appellants."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JERRY ELLISON and CHARLES ELLISON\nNo. 7324SC425\n(Filed 25 July 1973)\nCriminal Law \u00a7 75 \u2014 admission of incriminating statement \u2014 insufficiency of findings \u2014 harmless error\nEven if the trial court in an armed robbery prosecution erred in the admission of an incriminating statement made- by defendant to a deputy sheriff for the reason that the record does not show any relation between such statement and the court\u2019s finding that \u201cany statement\u201d made by defendant to the officer was freely, understandingly and voluntarily given, such error was harmless beyond a reasonable doubt where a different result would not likely have ensued had such evidence been excluded.\nAppeal by defendants from Falls, Judge, 15 January 1973 Session of Superior Court held in Watauga County.\nDefendants, Jerry Ellison and Charles Ellison, were charged in separate bills of indictment, proper in form, with the armed robbery of Steve Gurley and Dennis Clawson. Upon their pleas of not guilty, the State offered evidence tending to show the following:\nAt approximately 12:30 a.m., 2 July 1972, Steve Gurley and his brother-in-law Dennis Clawson, who were camping at Tater Hill, heard \u201csome people screaming and ... a girl crying and begging someone not to shoot her\u201d at a campsite 30 to 40 yards from their own campsite. Within a few minutes, three men approached Gurley\u2019s and Clawson\u2019s campsite on foot and two more men followed in a truck. The campfire illuminated the area and made \u201canyone distinctly visible within a radius of 8 to 10 feet.\u201d Three of the men were armed with shotguns and Charles Ellison had a knife. Dennis Clawson, who had attended school with both defendants, testified that Charles Ellison asked him \u201c \u2018Dennis Clawson, what in the hell are you doing here?\u2019 and then he started talking to Steve Gurley and he told Steve he was going to burn his mustache off.\u201d Charles Ellison attempted to burn Gurley\u2019s mustache with a match, then pulled Gurley into the tent and began hitting him in the face. Gurley testified: \u201cAfter I got up, Jerry Ellison began hitting pie on and about the face with his fists.\u201d Walter Isenhour fired his shotgun over Gurley\u2019s shoulder twice during the altercation. Dennis Clawson testified:\n\u201cThe men then began to talk among themselves what they were going to do with us and what they were going to take, and then one of the men to the right of me came toward me with a shotgun and he told me he was going to kill me. I do not know who this man was. He was pointing the gun at me. It was a shotgun. He first pointed the gun at me and then he swung the butt of it at me and missed because he was drunk.\u201d\nGurley and Clawson then fled into the woods where they hid for approximately 45 minutes. As Gurley ran from the campsite, he \u201csaw them distinctly pulling the tent toward tbeir truck. The tent with all its contents.\u201d When Gurley and Clawson returned. to their campsite, they found the. following items of personal property had been taken with the tent:\n\u201c. . . one billfold, containing approximately $22 .or $23, one set of eyeglasses, one pair of shoes, one shirt, one jacket, one pocket knife, one set of switch keys, one sleeping bag ... two pillows and three quilts .... \u201d\nThe rear window of Clawson\u2019s automobile had been shot out, and the following items of personal property were stolen from the automobile:\n\u201c. . . one tape player . . . ten tapes, one tape case, one 22-calibre rifle, one box of -22 shells, one' pellet \u25a0 rifle, two boxes of pellets, one pair of shoes, one battery charger, one pocket knife, one billfold, containing $5.00 and some important papers. One cigarette lighter and $3.00 worth of food and soft drinks and one hatchet.... \u201d\nDefendants offered no evidence and were found guilty as charged. From judgments imposing a prison sentence of 18 to 20 years as to each defendant, they appealed.\nAttorney General Robert Morgan and Assistant Attorney General Dale P. Johnson for the State.\nCharles C. Lamm, Jr., for defendant appellants."
  },
  "file_name": "0038-01",
  "first_page_order": 62,
  "last_page_order": 65
}