{ "id": 8554046, "name": "STATE OF NORTH CAROLINA v. ROY ROGERS HUBBARD", "name_abbreviation": "State v. Hubbard", "decision_date": "1973-09-19", "docket_number": "No. 7320SC626", "first_page": "431", "last_page": "436", "citations": [ { "type": "official", "cite": "19 N.C. App. 431" } ], "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": "141 S.E. 2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "264 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574092 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/264/0482-01" ] }, { "cite": "87 S.E. 2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "242 N.C. 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616735 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/nc/242/0476-01" ] }, { "cite": "111 S.E. 2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "251 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626173 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/nc/251/0460-01" ] }, { "cite": "197 S.E. 613", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1938, "opinion_index": 0 }, { "cite": "213 N.C. 736", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630413 ], "year": 1938, "opinion_index": 0, "case_paths": [ "/nc/213/0736-01" ] }, { "cite": "121 S.E. 667", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1924, "opinion_index": 0 }, { "cite": "187 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653832 ], "year": 1924, "opinion_index": 0, "case_paths": [ "/nc/187/0381-01" ] }, { "cite": "167 S.E. 2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "5 N.C. App. 146", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548484 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/5/0146-01" ] }, { "cite": "165 S.E. 2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 69", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557792 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0069-01" ] }, { "cite": "28 S.E. 2d 556", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "opinion_index": 0 }, { "cite": "223 N.C. 792", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617758 ], "year": 1943, "opinion_index": 0, "case_paths": [ "/nc/223/0792-01" ] }, { "cite": "163 S.E. 2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "274 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560069 ], "opinion_index": 0, "case_paths": [ "/nc/274/0328-01" ] }, { "cite": "174 S.E. 2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "276 N.C. 714", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563418 ], "opinion_index": 0, "case_paths": [ "/nc/276/0714-01" ] }, { "cite": "185 S.E. 2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "280 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571880 ], "year": 1971, "pin_cites": [ { "page": "314" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0306-01" ] }, { "cite": "175 S.E. 2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561810 ], "year": 1970, "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0065-01" ] }, { "cite": "187 S.E. 2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573638 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0020-01" ] } ], "analysis": { "cardinality": 563, "char_count": 10543, "ocr_confidence": 0.541, "pagerank": { "raw": 7.291804728892106e-08, "percentile": 0.4338712411418581 }, "sha256": "cf67c51f74b300b88000c77efdad91f8675dc31873f27019daaa67cff955b907", "simhash": "1:b7f4d32a768f11d5", "word_count": 1798 }, "last_updated": "2023-07-14T21:32:34.966448+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge Brock and Judge Parker concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ROY ROGERS HUBBARD" ], "opinions": [ { "text": "MORRIS, Judge.\nAppellant\u2019s first assignment of error is that persons 18, 19 and 20 years of age were systematically excluded from the jury lists. North Carolina amended its statutes effective 21 July 1971 to provide that all persons 18 years of age and older are to be included on the jury lists. G.S. 9-3. Defendants were tried in the Anson County Superior Court on 15 September 1971.\nHowever, appellant\u2019s position is unsound in light of the holding of the Supreme Court of North Carolina in State v. Cornell, 281 N.C. 20, 187 S.E. 2d 768 (1972), where the defendant was likewise tried after the enactment of G.S. 9-3 as amended. Citing G.S. 9-2 \u2014 which provides that the jury commissioners are to begin preparation of a new jury list \u201cat least thirty days\u201d prior to 1 January 1972 \u2014 the Supreme Court held that:\n\u201cThe absence from the jury list of the names of persons between the ages of eighteen and twenty-one for the short period of time here complained of is not unreasonable, and does not constitute systematic and arbitrary exclusion of this age group from jury service.\u201d Id. at 37.\nThe case sub judice is indistinguishable on the facts from Cornell, supra. This assignment of error is overruled.\nAppellant further contends that failure of the trial judge to conduct a voir dire examination following his objection to identification evidence rendered such evidence inadmissible. We dp not agree. Nowhere in the record does it appear that the defendant requested a voir dire examination of the identifying witness.\n\u201cWhen the State offers a witness whose testimony tends to identify the defendant as the person who committed the crime charged in the indictment, and the defendant interposes timely objection and requests a voir dire, or asks for an opportunity to \u2018qualify\u2019 the witness, such voir dire should be conducted in the absence of the jury and the competency of the evidence evaluated.\u201d (Emphasis added.) State v. Accor and State v. Moore, 277 N.C. 65, 79, 175 S.E. 2d 583 (1970).\nIn State v. Stepney, 280 N.C. 306, 314, 185 S.E. 2d 844 (1971), Justice Huskins, speaking for a unanimous court as to this question, and after quoting the above from State v. Accor and State v. Moore, supra, said:\n\u201cIt is apparent from the foregoing decisions that the better procedure dictates that the trial judge, even upon a general objection only, should conduct a voir dire in the absence of the jury, find facts, and thereupon determine the admissibility of in-court identification testimony. State v. Blackwell, supra (276 N.C. 714, 174 S.E. 2d 534). Failure to conduct the voir dire, however, does not necessarily render such evidence incompetent. Where, as here, the pretrial viewing of photographs was free of impermissible suggestiveness, and the evidence is clear and convincing that defendant\u2019s in-court identification originated with observation of defendant at the time of the robbery and not with the photographs, the failure of the trial court to conduct a voir dire and make findings of fact, as he should have done, must be deemed harmless error. State v. Williams, supra (274 N.C. 328, 163 S.E. 2d 353). A different result could not reasonably be expected upon a retrial if all evidence of pretrial photographic identification were excluded.\u201d Id. at 314.\nIn this case, there had been no evidence of a lineup or photographic identification, nor was there any later evidence as to that. The prosecuting witness testified that he was in the presence of the defendant for over two hours and had ample opportunity to observe him. A part of that time defendant had a nylon stocking over his face, but for a part of the time his face was unmasked and the witness was in an automobile or pickup truck with him for the greater part of the time. Additionally, there was other clear evidence of identification. No possible prejudice could have resulted to defendant by the court\u2019s failure to conduct a voir dire examination.\nAppellant excepts to the charge of the trial court in that it amounts to a comment on the evidence. The record does not support this position. A statement that a party had offered evidence which \u201ctends to show\u201d is not an expression of opinion that the evidence established such or should be believed. Thompson v. Davis, 223 N.C. 792, 28 S.E. 2d 556 (1943).\nAppellant further excepts to the charge in that the expression \u201ceither or both\u201d is used repeatedly in reference to the guilt of the two defendants. While it is error to instruct the jury in the disjunctive when joint defendants are tried together, State v. Parrish, 275 N.C. 69, 165 S.E. 2d 230 (1969); State v. Doss, 5 N.C. App. 146, 167 S.E. 2d 830 (1969), the record in the case sub judice reveals that each use of the disjunctive \u201ceither or both\u201d is followed by a specific instruction referring to each defendant by name. Defendant cannot be permitted to select portions of the charge \u2014 even though objectionable when standing alone \u2014 and assign errors to them if those portions can be readily explained by reference to the charge in its entirety, and the charge in its entirety appears to be without prejudicial error. In re Mrs. Hardee, 187 N.C. 381, 121 S.E. 667 (1924); Acceptance Corp. v. Edwards, 213 N.C. 736, 197 S.E. 613 (1938).\nThere was no error on the part of the trial court in failing to instruct the jury on the lesser included offense of larceny. It is well settled that an indictment for robbery with firearms will support a conviction of larceny, and when there is evidence of defendant\u2019s guilt of larceny it is error for the court to fail to submit the question to the jury. State v. Wenrich, 251 N.C. 460, 111 S.E. 2d 582 (1959); State v. Davis, 242 N.C. 476, 87 S.E. 2d 906 (1955). It is equally well settled, however, that where all the evidence shows that property was feloniously taken from the person of the prosecuting witness by the use of a dangerous weapon, the court is not required to submit the question of defendant\u2019s guilt of lesser degrees of the crime. State v. Fletcher, 264 N.C. 482, 141 S.E. 2d 873 (1965); State v. Wenrich, supra. Here the State\u2019s evidence was uncontradicted, and it tended to show that the defendants did in fact take property from McRae\u2019s person with the use of firearms.\nAppellant\u2019s'final exception to the trial court\u2019s accepting the verdict is without merit and overruled. \u2022'\nIn defendant\u2019s trial in the Superior Court, we find no prejudicial error.\nNo error.\nChief Judge Brock and Judge Parker concur.", "type": "majority", "author": "MORRIS, Judge." } ], "attorneys": [ "Attorney General Morgan, by Associate Attorney Hassel, for the State.", "Jones and Drake, by Henry T. Drake, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROY ROGERS HUBBARD\nNo. 7320SC626\n(Filed 19 September 1973)\n1. Constitutional Law \u00a7 29; Grand Jury \u00a7 3; Jury \u00a7 7 \u2014 jury lists \u2014 absence of persons 18 to 21 years old\nThe absence from the jury lists of the names of persons between the ages of 18 and 21 during the period from 21 July 1971, the effective date of the amendment of G.S. 9-3 lowering the age requirement for jurors from 21 years to 18 years, and 15 September 1971, the date of defendant\u2019s trial, did not constitute systematic exclusion of such age group from jury service.\n2. Criminal Law \u00a7 66 \u2014 identification testimony \u2014 failure to hold voir dire\nFailure of the trial court to conduct a voir dire examination following defendant\u2019s objection to identification evidence did not render such evidence inadmissible where defendant did not request a voir dire examination of the identifying witness, there was no evidence at trial of any lineup or photographic identification, and the evidence is clear and convincing that the in-court identification originated with the witness\u2019s observation of defendant at the time of the crime.\n3. Criminal Law \u00a7 114 \u2014 statement that evidence \u201ctends to show\u201d \u2014 no expression of opinion\nA statement in the charge that a party has offered evidence which \u201ctends to show\u201d is not an expression of opinion that the evidence established such or should be believed.\n4. Criminal Law \u00a7 113 \u2014 joint trial \u2014 use of \u201ceither or both\u201d in charge\nThe trial court did not err in using the disjunctive \u201ceither or both\u201d in reference to the guilt of the two defendants where each use of the disjunctive was followed by a specific instruction referring to each defendant by name.\n5. Robbery \u00a7 5\u2014 failure to instruct on larceny\nThe trial court in an armed robbery prosecution was not required to instruct the jury on the lesser included offense of larceny where the State\u2019s uncontradicted evidence tended to show that defendants took property from the person of the victim with the use of firearms.\nON certiorari to review judgment of Gambill-, Judge, 13 September 1971 Criminal Session of Anson County Superior Court.\nDefendant was indicted, along with a codefendant not involved in this appeal, on two counts of armed robbery and counts of kidnapping and felonious breaking and entering. Defendant pled not guilty to all counts and was convicted by a jury on all counts.\nAt the beginning of the trial, defendant\u2019s attorney moved that the indictment be quashed on the basis that defendant was 20 years old, and that all persons 18, 19 and 20 years old were systematically excluded from the jury list. The motion was denied.\nThe uncontradicted evidence of the State tended to show the following:\nThe prosecuting witness, Baxter McRae, returned to his home in Peachland to discover that the defendant Hubbard and his accomplice Sturdivant had entered his home and were waiting for him, armed with a \u201csnub-nosed 38.\u201d Following a series of threats to the person of McRae and to the safety of his wife, the discharge of the 38 and a series of questions concerning the amount of cash available to McRae, the defendants took $62 from McRae\u2019s person at gun point and drove to Wadesboro with him and forced him to withdraw $27,000 from his bank account. McRae thereupon picked up defendant Hubbard in his pickup truck, gave him the money in a brown paper bag, and drove him out of town to a point in the country where McRae was tied up and abandoned, and the defendants attempted to escape in a blue 1966 Plymouth.\nA State Highway Patrolman testified that a blue 1966 Plymouth was reported leaving the scene where the pickup truck had been abandoned. He further testified that he chased the car and apprehended Hubbard, who had on his person a brown paper bag containing the $27,000 withdrawn from the bank by McRae.\nWe granted defendant\u2019s petition for certiorari in lieu of appeal, the maximum time for perfecting his appeal and docketing the record having expired.\nAttorney General Morgan, by Associate Attorney Hassel, for the State.\nJones and Drake, by Henry T. Drake, for defendant appellant." }, "file_name": "0431-01", "first_page_order": 455, "last_page_order": 460 }