{ "id": 8547675, "name": "STATE OF NORTH CAROLINA v. JESSE JOHNSON and JAMES HENRY COLLINS", "name_abbreviation": "State v. Johnson", "decision_date": "1974-09-18", "docket_number": "No. 7420SC621", "first_page": "52", "last_page": "58", "citations": [ { "type": "official", "cite": "23 N.C. App. 52" } ], "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": "19 S.E. 96", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "114 N.C. 813", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651529 ], "opinion_index": 0, "case_paths": [ "/nc/114/0813-01" ] }, { "cite": "36 S.E. 2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "225 N.C. 726", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617611 ], "opinion_index": 0, "case_paths": [ "/nc/225/0726-01" ] }, { "cite": "72 S.E. 2d 612", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622834 ], "opinion_index": 0, "case_paths": [ "/nc/236/0137-01" ] }, { "cite": "100 S.E. 241", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "178 N.C. 683", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273855 ], "opinion_index": 0, "case_paths": [ "/nc/178/0683-01" ] }, { "cite": "84 N.C. 737", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698711 ], "opinion_index": 0, "case_paths": [ "/nc/84/0737-01" ] }, { "cite": "151 F. 2d 736", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3672091 ], "opinion_index": 0, "case_paths": [ "/f2d/151/0736-01" ] }, { "cite": "186 S.E. 2d 384", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "393" }, { "page": "393" } ], "opinion_index": 0 }, { "cite": "280 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572439 ], "pin_cites": [ { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0435-01" ] }, { "cite": "204 S.E. 2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "659" }, { "page": "659" } ], "opinion_index": 0 }, { "cite": "285 N.C. 238", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563902 ], "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0238-01" ] }, { "cite": "186 S.E. 2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "280 N.C. 579", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "64 S.E. 2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "875" }, { "page": "875" } ], "opinion_index": 0 }, { "cite": "233 N.C. 511", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611849 ], "pin_cites": [ { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0511-01" ] }, { "cite": "86 S.E. 774", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "170 N.C. 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662000 ], "opinion_index": 0, "case_paths": [ "/nc/170/0697-01" ] }, { "cite": "86 N.C. 650", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275278 ], "opinion_index": 0, "case_paths": [ "/nc/86/0650-01" ] } ], "analysis": { "cardinality": 622, "char_count": 12367, "ocr_confidence": 0.587, "pagerank": { "raw": 3.245967116592005e-07, "percentile": 0.8686050808367592 }, "sha256": "cff63eb0363755726c922ec48e2f71587f8705620d2c13d39fed88e460f8175d", "simhash": "1:cf42340e26368faf", "word_count": 2095 }, "last_updated": "2023-07-14T21:32:39.683180+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Campbell and Parker concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JESSE JOHNSON and JAMES HENRY COLLINS" ], "opinions": [ { "text": "VAUGHN, Judge.\nDefendant\u2019s first contention on appeal is that the trial court erred in trying defendants for this count of armed robbery when defendants had been previously found guilty of another armed robbery which occurred at the same time and place.\nIt is well-settled that the \u201csame act may constitute two or more offenses which are distinct from each other\u201d and that in such cases \u201cthe accused may be separately prosecuted and punished for each.\u201d 1 Wharton\u2019s Criminal Law, \u00a7 394, pp. 537-8. See State v. Nash, 86 N.C. 650; State v. Gibson, 170 N.C. 697, 86 S.E. 774.\nThe defendants were charged on three counts of robbery, all of which occurred at the same time and place. In a trial on 12 November 1973, defendants were found guilty of armed robbery of James Frye. Now the defendants are being tried for the armed robbery of Jimmy Dunn. The second indictment under which defendants are now being tried is identical to the first except for the victim and the property taken.\nThe discussion of this contention of double jeopardy presents two questions: (1) whether the \u201csame evidence\u201d rule can be applied to show double jeopardy and (2) whether the acts of armed robbery do constitute the \u201csame offense.\u201d\nThe same evidence test is defined in State v. Hicks, 233 N.C. 511, 516, 64 S.E. 2d 871, 875, as follows: \u201cWhether the facts alleged in the second indictment, if given in evidence, would have sustained a conviction under the first indictment [citations], or whether the same evidence would support, a conviction in each case [citations].\u201d\nWhen applying this test to the case at bar, we find that the same evidence would not support a conviction in each case. Evidence of a robbery of property from the first victim will not support a conviction of a robbery of different property from a different victim. This is analogous to the situation in Hicks, wherein Justice Ervin wrote that evidence of conspiracy to damage or injure property owned or used by the Duke Power Company would not support a conviction of a conspiracy to damage or injure property owned or used by Jefferson Standard Broadcasting Company. State v. Hicks, supra, at 517, 64 S.E. 2d at 875.\nIn State v. Ballard, 280 N.C. 579, 186 S.E. 2d 372, the Supreme Court applied the same evidence test and determined that defendants had been twice put in jeopardy. That case is. distinguishable from the case at bar.\nIn Ballard, the rationale was that \u201c . . . when the lives of all employees in a store are threatened and endangered by the use or threatened use of a firearm incident to the theft of their employer\u2019s money or property, a single robbery with firearms is committed.\u201d State v. Potter, 285 N.C. 238, 253, 204 S.E. 2d 649, 659. In the case at bar, the persons threatened were not employees of one employer victimized by the taking of the employer\u2019s property. Each person threatened was a victim, each being robbed of his personal property.\nAs to the \u201csame offense\u201d doctrine in Potter, supra, the majority held that verdicts of guilty in an armed robbery of two cash registers manned by separate employees of a food market were to be considered as a single verdict of guilty of armed robbery. In so finding the Court limited its holding to a situation in which there is \u201cthe use or threatened use of a firearm incident to the theft of their employer\u2019s money or property.\u201d State v. Potter, supra, at 253, 204 S.E. 2d, at 659. The Court expressed no opinion as to a factual situation in which the robber takes money or property of an employee or customer.\nHere defendants threatened the use of force on separate victims and took property from each of them. They were not employees. It was not the employer who was robbed. Rather each separate victim was deprived of property. The armed robbery of each person is a separate and distinct offense, for which defendants may be prosecuted and punished.\nNext, we consider the defendant\u2019s allegation that it was error for the Court to permit leading questions in the voir dire examination of witnesses Frye and Dunn as to their identification testimony. \u201cThe trial court has discretionary authority to permit leading questions in proper instances [citation].\u201d State v. Bass, 280 N.C. 435, 448, 186 S.E. 2d 384, 393. Further, \u201cthe rulings of the judge on the use of leading questions are discretionary,\u201d and such rulings are \u201creversible only for abuse of discretion.\u201d 1 Stansbury, N. C. Evidence (Brandis Revision) \u00a7 31. Also see State v. Bass, supra, at 448, 186 S.E. 2d, at 393.\nIn Bass, the North Carolina Supreme Court held that the trial judge\u2019s decision to permit leading questions asked by the solicitor in examining a rape victim on voir dire as to identification testimony was permissible and showed no abuse of discretion.\nThe third contention of defendant is that the Court erred in finding that the in-court identification of defendants by the witnesses was based solely upon their observation of defendants at the place of the alleged crime. The trial judge conducted a voir dire examination and found the identification to be of independent origin. That finding was fully supported by the evidence.\nThe robbery occurred inside a well-lighted building. It was not yet dark and the lights were on inside the building. Both witnesses testified that they were in the presence of defendants for approximately ten minutes and that they viewed the full face of each defendant. At one point, witnesses were within one foot of one of the defendants. Such \u201cfindings of facts by the trial judge are conclusive when, as here, they are supported by competent evidence, [citations].\u201d State v. Bass, supra, at 445, 186 S.E. 2d, at 391. We find no error in the trial court\u2019s ruling on this issue.\nFourthly, the defendant contends that the Court erred in permitting. the testimony of William Little claiming it constituted improper rebuttal evidence. It appeared to have rebuttal .value to the testimony elicited from defendant\u2019s witness immediately preceding Little. But even assuming that we did not find Little\u2019s testimony to be in the nature of rebuttal, there would not necessarily be error, for the question of rebuttal testimony is generally subject to the sound discretion of the trial court. Williams v. U. S., 151 F. 2d 736. It is within the discretion of the trial judge to permit, in the interest of justice, the examination of witnesses at any stage of trial. State v. King, 84 N.C. 737. This discretion to determine the order of testimony will not be interfered with unless it is abused. State v. Stancill, 178 N.C. 683, 100 S.E. 241.\nFinally, defendant cites as error the Court\u2019s allowing SBI Agent Parker to refer to his notes while testifying. A law enforcement agent may properly use notes taken during an investigation to improve his recollection as to specific dates and details of an investigation. In addition, there are a number of cases ' supporting the proposition that while a witness may usually speak from memory, he may refer to paper, memoranda or other written instruments to refresh his memory. State v. Peacock, 236 N.C. 137, 72 S.E. 2d 612; Steele v. Coxe, 225 N.C. 726, 36 S.E. 2d 288. It is permissible for the witness to refer to his notes when he cannot properly recall events. See State v. Staton, 114 N.C. 813, 19 S.E. 96. See 1 Stansbury, N. C. Evidence (Brandis Revision) \u00a7 31.\n\u2022 Careful consideration of each of defendant\u2019s assignments or error having been given, we find no error.\nNo error.\nJudges Campbell and Parker concur.", "type": "majority", "author": "VAUGHN, Judge." } ], "attorneys": [ "Attorney General Robert Morgan by Thomas B. Wood, Assistant Attorney General, for the State.", "heath, Bynum & Kitehin by Henry L. Kitchin for defendant appellants." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JESSE JOHNSON and JAMES HENRY COLLINS\nNo. 7420SC621\n(Filed 18 September 1974)\n1. Criminal Law \u00a7 26\u2014 one act \u2014 two offenses\nThe same act may constitute two or more offenses which are distinct from each other, and in such cases the accused may be separately prosecuted and punished for each.\n2. Criminal Law \u00a7 26; Robbery \u00a7 2\u2014 same evidence rule \u2014 double jeopardy\nWhere the facts alleged in a second indictment, if given in evidence, would have sustained a conviction under the first indictment, or where the same evidence would support a conviction in each case, the \u201csame evidence\u201d rule can be applied to show double jeopardy; however, that rule was not applicable in this armed robbery ease where defendants had previously been tried and found guilty of robbing one victim, and they were subsequently tried for robbery of a second victim.\n3. Criminal Law \u00a7 26; Robbery \u00a7 2\u2014 robbery of two people \u2014 separate offenses\nThe armed robbery of each of two people was a separate and distinct offense for which defendants could be prosecuted and punished.\n4. Criminal Law \u00a7 66\u2014 identification testimony \u2014 leading questions on voir dire\nThe trial court did not err in permitting leading questions in the voir dire examination of two witnesses as to their identification testimony.\n5. Criminal Law \u00a7 66\u2014 in-court identification of defendants \u2014 observation at crime scene as basis\nEvidence was sufficient to support the trial court\u2019s finding that an in-court identification of defendants was based on the witnesses\u2019 observations at the crime scene where such evidence tended to show that the crime occurred in a well-lighted building, the witnesses were in the presence of defendants for approximately ten minutes, and the witnesses viewed the full face of each defendant.\n6. Criminal Law \u00a7 93\u2014 order of proof \u2014 discretionary matter\nIt is within the discretion of the trial judge to permit, in the interest of justice, the examination of witnesses at any stage of the trial, and this discretion to determine the order of testimony will not be interfered with unless it is abused.\n7. Criminal Law \u00a7 80\u2014 reference by witness to notes\nA law enforcement agent may properly use notes taken during an investigation to improve his recollection as to specific dates and details of an investigation.\nAppeal by defendants from Seay, Judge, 11 March 1974 Session of Superior Court held in Richmond County.\nDefendants Jesse Johnson and James Henry Collins were indicted for armed robbery.\nEvidence for the State tended to show the following. On 10 July 1973, Bill Little and Annie Lou Pratt drove the defendants, Jesse Johnson and James Henry Collins to an establishment known as Rib\u2019s Place in Windblow, North Carolina. En route the group stopped at the home of June Moore where Collins got a shotgun.\nThe group arrived at Rib\u2019s Place at approximately 8:00 p.m. Shortly thereafter Little and Pratt left, noticing that defendant Collins and Walter Pergues had guns.\nInside Rib\u2019s Place, Jimmy Dunn, victim of the robbery, was sitting at a booth with Jimmy Frye and Arthur Duke. Dunn looked up and saw a shotgun in the hand of Collins. The men were ordered to file behind the counter where they were bound with tape. The defendants then took Dunn\u2019s wallet and retrieved his social securtiy card, driver\u2019s license, $3.00 in currency and other things located therein.\nOne of the robbers asked, \u201cYou want to kill them now?\u201d to which Collins replied, \u201cNo, we don\u2019t want to hurt the boys.\u201d The men left in a Thunderbird, having taken the keys from Duke. The automobile was later found in a lake behind Bill Little\u2019s house.\nBoth Dunn and Frye observed defendants for approximately ten minutes in the well-lighted room. Dunn testified that he came within a couple of feet of defendants. Frye came, within 6 inches of defendant Collins and observed Johnson some 12-15 feet away. Both Dunn and Frye made positive in-court identifications.\nAmong the evidence offered by defendants was the testimony of Annie Ruth Collins, defendant Collins\u2019 sister. She stated that her brother was asleep on her porch during the hours of the alleged robbery and that defendant Johnson was inside her house that same evening until about 9:00 p.m., when he left to go to her sister\u2019s house.\nFulton Junior Moore denied that he ever saw defendant Collins get a shotgun at his house. This was contradicted by the State, when SBI agent Van Parker testified that Moore had told him earlier that defendant Collins asked his permission to use his shotgun.\nUpon a verdict of guilty as charged, defendants were sentenced to a prison term of not less than 25 nor more than 30 years. This sentence is to run consecutively to any sentence previously imposed.\nAttorney General Robert Morgan by Thomas B. Wood, Assistant Attorney General, for the State.\nheath, Bynum & Kitehin by Henry L. Kitchin for defendant appellants." }, "file_name": "0052-01", "first_page_order": 80, "last_page_order": 86 }