{
  "id": 8550001,
  "name": "STATE OF NORTH CAROLINA v. WILLIE LEE KIRBY",
  "name_abbreviation": "State v. Kirby",
  "decision_date": "1970-02-25",
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  "casebody": {
    "judges": [
      "Campbell and HedeicK, JJ., concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. WILLIE LEE KIRBY"
    ],
    "opinions": [
      {
        "text": "PARKER, J.\nIn this case the State offered evidence tending to show that on the night of 11 September 1968 the defendant, in company with others, assaulted one Tyler Stewart and took from Stewart his pocketbooks and money and a .32 Colt automatic pistol; that on the same night the defendant was seen in possession of the pistol; and that a few days thereafter defendant had pawned the pistol. A deputy sheriff, testifying for the State, testified that on 14 or 15 September 1968 he had seen the defendant and told him he wanted to talk to him concerning the robbery of Tyler Stewart; that the defendant had then ridden in the patrol car with the deputy to the county jail; that while still in the patrol car the deputy had called the sheriff on the radio and asked his assistance in questioning the defendant; and that the sheriff said \u201cto lock him up and in a few minutes he\u2019d be over there,\u201d whereupon defendant had jumped out and run.\nIn charging the jury, the trial judge said:\n\u201cNow, members of the jury, I instruct you that the voluntary flight of a defendant immediately after he is accused of a crime that has been committed is not a circumstance sufficient in itself to establish his guilt, but it is a circumstance which, if proved by the State beyond a reasonable doubt, you may consider in the light of all the other evidence in the case in determining the probability of the defendant\u2019s guilt or innocence. You and you alone must determine whether the evidence of flight shows a conscious guilt and the significance of such evidence in this case, if you find that there was flight and find that beyond a reasonable doubt.\u201d\nDefendant\u2019s sole exception and assignment of error brought forward in his brief is directed to this portion of the trial court\u2019s charge to the jury. In this assignment of error there is no merit.\nIt is well settled that flight of a person after a crime has been committed is a circumstance to be considered with the other circumstances of the case in determining his guilt or innocence. 29 Am. Jur. 2d, Evidence, \u00a7 280, p. 329; Annotation, 25 A.L.R. 886. North Carolina decisions are in accord. State v. Gaines, 260 N.C. 228, 132 S.E. 2d 485; State v. Downey, 253 N.C. 348, 117 S.E. 2d 39; State v. Blanks, 230 N.C. 501, 53 S.E. 2d 452; State v. Peterson, 228 N.C. 736, 46 S.E. 2d 852; State v. Payne, 213 N.C. 719, 197 S.E. 573; State v. Hairston, 182 N.C. 851, 109 S.E. 45; State v. Malonee, 154 N.C. 200, 69 S.E. 786. \u201cWhile the flight of an accused person may be admitted as a circumstance tending to show guilt, \u2018 (i) t does not create a presumption of guilt, nor is it sufficient standing alone, but it may be considered in connection with other facts in determining whether the combined circumstances amount to an admission.\u2019 \u201d State v. Gaines, supra.\nDefendant contends that the challenged instruction was nevertheless erroneous and prejudicial in this case in that it assumed that at the time defendant fled he had been accused of the crime, whereas the evidence was that at that time no formal charge had been placed against him and the officer had merely informed defendant that he wanted to talk to him concerning the robbery. Defendant argues that the court thereby implied to the jury that the defendant had in fact been formally charged with the crime and that he had fled for the purpose of avoiding prosecution. Defendant argues that this constituted an expression by the court of its opinion upon the evidence in violation of G.S. 1-180. We do not so understand the charge nor do we believe the jury could have been in any way misled thereby to defendant\u2019s prejudice. While at the time he fled the defendant had not yet been formally accused in the sense of being served with a warrant or having a bill of indictment returned against him, the evidence was sufficient to justify a jury finding that the defendant knew, at the time he fled, that he was \u201caccused\u201d of the crime in the sense of being a prime suspect and that he was likely to be arrested and charged with its commission. He had just heard the Sheriff tell the deputy on the radio to \u201clock him up.\u201d Under these circumstances it was proper for the jury to consider the flight of the defendant in the light of all the other evidence in determining the probability of defendant\u2019s guilt or innocence, and the court properly so charged.\nThe remaining exceptions in the record are not set out in defendant\u2019s brief nor is any reason or argument stated or authority cited to support them. They will therefore be taken as abandoned by him. Rule 28, Rules of Practice in the Court of Appeals.\nNo error.\nCampbell and HedeicK, JJ., concur.",
        "type": "majority",
        "author": "PARKER, J."
      }
    ],
    "attorneys": [
      "Attorney General Robert Morgan and Staff Attorney James L. Blackburn for the State.",
      "R. E. Little, III, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. WILLIE LEE KIRBY\nNo. 7020SC91\n(Filed 25 February 1970)\n1. Criminal Law \u00a7\u00a7 46, 114\u2014 flight of defendant \u2014 instructions \u2014 expression of opinion\nTrial court\u2019s instruction that the voluntary flight of a defendant immediately after he is accused of a crime is not a circumstance sufficient in itself to establish his guilt, held not to constitute an expression of opinion on the theory that the court implied to the jury that defendant had been formally charged with crime at the time of his flight from a deputy sheriff\u2019s car when in fact the deputy had merely told defendant that he wanted to talk to him concerning a robbery. G.S. 1-180.\n2. Criminal Law \u00a7 46\u2014 flight of an accused \u2014 circumstance of guilt\nFlight of a person after a crime has been committed is a circumstance to be considered with the other circumstances of the case in determining his guilt or innocence.\n3. Criminal Law \u00a7 46\u2014 flight of accused \u2014 jury issue\nWhere at the time of his flight from a deputy sheriff\u2019s car the defendant had not yet been formally charged with crime, but defendant knew he was a prime suspect and had heard the sheriff tell the deputy over the car radio to \u201clock him up,\u201d it was proper for the jury to consider the flight of defendant in the light of all the other evidence in determining the probability of guilt or innocence.\n4. Criminal Law \u00a7 166\u2014 the brief \u2014 abandonment of exceptions\nExceptions in the record not set out in defendant\u2019s brief nor supported by argument or citation of authority will be taken as abandoned by defendant. Rule of Practice in the Court of Appeals No. 28.\nOn Certiorari to review judgment of Exum, J., 9 June 1969 Criminal Session of AnsoN Superior Court.\nDefendant was indicted for common-law robbery. He pleaded not guilty. The jury found defendant guilty and judgment was entered on the verdict sentencing defendant to prison as a committed youthful offender. Subsequently this Court granted defendant\u2019s petition for certiorari to perfect a late appeal.\nAttorney General Robert Morgan and Staff Attorney James L. Blackburn for the State.\nR. E. Little, III, for defendant appellant."
  },
  "file_name": "0366-01",
  "first_page_order": 388,
  "last_page_order": 390
}