{ "id": 8572156, "name": "STATE v. ROSS ALLISON", "name_abbreviation": "State v. Allison", "decision_date": "1962-01-12", "docket_number": "", "first_page": "240", "last_page": "244", "citations": [ { "type": "official", "cite": "256 N.C. 240" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "40 S.E. 2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "227 N.C. 26", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620290 ], "opinion_index": 0, "case_paths": [ "/nc/227/0026-01" ] }, { "cite": "64 S.E. 2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "571" } ], "opinion_index": 0 }, { "cite": "233 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610305 ], "pin_cites": [ { "page": "442" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0438-01" ] }, { "cite": "48 S.E. 670", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "136 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661615 ], "opinion_index": 0, "case_paths": [ "/nc/136/0628-01" ] }, { "cite": "19 S.E. 2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "221 N.C. 213", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627123 ], "opinion_index": 0, "case_paths": [ "/nc/221/0213-01" ] }, { "cite": "42 S.E. 2d 685", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "227 N.C. 587", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626595 ], "opinion_index": 0, "case_paths": [ "/nc/227/0587-01" ] }, { "cite": "76 S.E. 2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "238 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598343 ], "opinion_index": 0, "case_paths": [ "/nc/238/0034-01" ] }, { "cite": "116 S.E. 2d 143", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 55", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622231 ], "opinion_index": 0, "case_paths": [ "/nc/253/0055-01" ] }, { "cite": "7 S.E. 2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "217 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601427 ], "opinion_index": 0, "case_paths": [ "/nc/217/0164-01" ] }, { "cite": "174 S.E. 105", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "206 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630522 ], "opinion_index": 0, "case_paths": [ "/nc/206/0374-01" ] }, { "cite": "72 S.E. 481", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "156 N.C. 641", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272488 ], "opinion_index": 0, "case_paths": [ "/nc/156/0641-01" ] }, { "cite": "5 S.E. 921", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "100 N.C., 429", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650916 ], "opinion_index": 0, "case_paths": [ "/nc/100/0429-01" ] }, { "cite": "94 N.C. 973", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652712 ], "opinion_index": 0, "case_paths": [ "/nc/94/0973-01" ] }, { "cite": "64 N.C. 56", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8681166 ], "opinion_index": 0, "case_paths": [ "/nc/64/0056-01" ] }, { "cite": "78 N.C. 504", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8697138 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nc/78/0504-01" ] }, { "cite": "64 S.E. 2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613571 ], "opinion_index": 0, "case_paths": [ "/nc/233/0577-01" ] }, { "cite": "68 S.E. 2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "234 N.C. 716", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625810 ], "opinion_index": 0, "case_paths": [ "/nc/234/0716-01" ] } ], "analysis": { "cardinality": 481, "char_count": 9173, "ocr_confidence": 0.553, "pagerank": { "raw": 4.282083038919569e-07, "percentile": 0.9160914400800974 }, "sha256": "da3e3dac8792a4b1555456759e8709663965d4e3554918a9818d37ccebfe2e85", "simhash": "1:d3e835fcb03a3341", "word_count": 1657 }, "last_updated": "2023-07-14T16:51:02.884412+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. ROSS ALLISON." ], "opinions": [ { "text": "Parker, J.\nThe State\u2019s evidence is amply sufficient to carry the case to the jury on the charge in the indictment of an assault on Clannies Strayhorn, a female 78 years of age, with intent to commit rape, by Ross Allison, 52-year-old husband of her niece. Defendant makes no contention to the contrary.\nThe State\u2019s evidence tends to show that the criminal assault charged in the indictment was made by defendant on Clannies Strayhorn in her home after dark and after she had eaten supper on Sunday, 22 January 1961.\nDefendant\u2019s defense is an alibi. His evidence tends to show that on Sunday, 22 January 1961, he was at the Naha Club from 3:00 o\u2019clock P.M. to 6:00 o\u2019clock P.M., that he left the Naha Club after 6:00 o\u2019clock P.M. in a pickup truck driven by Jackson Tennin, and went to Daniel Corbett\u2019s home. He left Daniel Corbett\u2019s home, went to Clyde\u2019s home, stayed there a few minutes, and then returned to Daniel Corbett\u2019s home, where he and others watched television until about 7:45 P.M. o\u2019clock. He then went to his home not far away, was in bed there at five minutes to 8:00 P.M. o\u2019clock, and did not leave his home thereafter that night.\nIn respect to defendant\u2019s defense of an alibi, the court charged the jury as follows:\n\u201cI instruct you an alibi simply means that the defendant was at another place at the time the crime charged is alleged to have been committed, and therefore he could not have committed it. All the evidence bearing upon that should be carefully considered by you and if the evidence on this subject consistent with all that other testimony, is sufficient to raise a reasonable doubt as to the guilt of the accused, you should acquit him. The accused is not required to prove an alibi beyond a reasonable doubt, nor by the greater weight of the evidence, that is the preponderance. It is sufficient to justify an acquittal if the evidence on that point raises and supports a reasonable doubt of his presence at the time and place when the crime was charged to have been committed, if you find a crime was committed. (You understand also an attempt to prove an alibi does not shift the burden of proof from the State to the defendant, the burden is still upon the defendant).\u201d\nDefendant assigns as error the last sentence, which is enclosed in parentheses.\nThe trial court\u2019s charge in this respect, with the exception of the last sentence, approximates a verbatim repetition of a charge in respect to an alibi approved by us in S. v. Minton, 234 N.C. 716, 68 S.E. 2d 844, as in accord with our precedents in S. v. Bridgers, 233 N.C. 577, 64 S.E. 2d 867, and S. v. Jaynes, 78 N.C. 504.\nThe last two sentences of the approved charge in the Minton case are:\n\u201cIt is sufficient to justify an acquittal if the evidence upon that point raises a reasonable doubt of his presence at the time and place of the commission of the crime charged, if you should find that a crime was committed, and you will understand also that the attempt of the accused to prove an alibi does not shift the burden of proof to the defendant. The burden remains on the state to prove the defendant\u2019s guilt beyond a reasonable doubt.\u201d\nThis Court said in the Minton case: \u201cAn accused, who relies on an alibi, does not have the burden of proving it. It is incumbent upon the State to satisfy the jury beyond a reasonable doubt on the whole evidence that such accused is guilty.\u201d\nWe said as early as 1878 in S. v. Jaynes, supra: \u201cThe burden of proving an alibi did not rest upon the prisoner. The burden remained upon the State to satisfy the jury upon the whole evidence of the guilt of the prisoner.\u201d\nIn S. v. Josey, 64 N.C. 56, the defense was an alibi. \u201c \u2018His Honor charged the jury that the burden of proof to show the guilt of the prisoner was upon the State, but that when the State had made out a prima facie case, and the prisoner attempted to set up an alibi, the burden of proof was shifted, and that if the defense failed to establish the alibi to the satisfaction of the jury, they must find the prisoner guilty.\u2019 \u201d The charge was held erroneous, and a venire de novo was ordered.\nApplying the doctrine of contextual interpretation, we have upheld inexact charges on an alibi in S. v. Jaynes, supra; S. v. Starnes, 94 N.C. 973; S. v. Freeman, 100 N.C., 429, 5 S.E. 921; S. v. Rochelle, 156 N.C. 641, 72 S.E. 481; S. v. Sheffield, 206 N.C. 374, 174 S.E. 105. However, in none of these cases, with the exception of the Freeman case, was the burden of proof of showing an alibi placed as unequivocally and as clearly upon the defendant, as in the instant case. In the Sheffield case, the trial judge charged in part on an alibi: \u201cThe burden of proving an alibi, however, does not rest upon the prisoner.\u201d In all of these cases the Court expressly or substantially states that the burden of proving an alibi does not rest upon the defendant.\nWhether the challenged part of the charge here is read contextually or not, this interpretation of it is imperative: the trial court placed upon the defendant the burden of proving his defense of an alibi. Such a charge is erroneous, according to all of our decisions on the subject.\nIn other parts of the charge the court placed the burden of proof upon the State to satisfy the jury beyond a reasonable doubt on the whole evidence that the defendant is guilty.\n\u201cThe burden of proof being a substantial right, an erroneous placing of the burden of proof, or conflicting instructions thereon, ... , is prejudicial.\u201d Strong\u2019s N. C. Index, Yol. I, Appeal and Error, p. 126, where many of our cases are cited. The Court said in Templeton v. Kelley, 217 N.C. 164, 7 S.E. 2d 380: \u201cThe members of the jury are not supposed to be able to determine when the judge states the law correctly and when incorrectly.\u201d\nHere the jury was given conflicting instructions on the burden of proof, and the burden of proof of establishing an alibi was pinpointed as being upon the defendant. By no contextual reading of the charge can this manifest, prejudicial error be upheld, as cured by other parts of the charge. We have consistently held that conflicting instructions upon a material aspect of the case must be held for prejudicial error, since the jury may have acted upon the incorrect part of the charge, or to phrase it differently, since it cannot be known which instruction was followed by the jury. S. v. Gurley, 253 N.C. 55, 116 S.E. 2d 143; S. v. Stroupe, 238 N.C. 34, 76 S.E. 2d 313; S. v. Johnson, 227 N.C. 587, 42 S.E. 2d 685; S. v. Isley, 221 N.C. 213, 19 S.E. 2d 875; S. v. Morgan, 136 N.C. 628, 48 S.E. 670; Strong\u2019s N. C. Index, Vol. IV, Trial, p. 334.\nOther assignments of error to the charge are not without merit, but need no discussion since they will probably not recur upon a new trial.\nIn justice to the learned and experienced trial judge, we deem it appropriate to say that it seems that the use of the words \u201cthe burden is still upon the defendant\u201d in the challenged part of the charge, instead of the burden is still upon the State, is an error in taking and transcribing the charge, or is \u201cone of those casualties which, now and then, befalls the most circumspect in the trial of causes on the circuit.\u201d S. v. Simpson, 233 N.C. 438, 442, 64 S.E. 2d 568, 571. However the mistake occurred, the error appears in the record, and we are bound by it as it comes to us. S. v. Gause, 227 N.C. 26, 40 S.E. 2d 463. Further, in the part of the charge quoted appear these words: \u201cconsistent with all that other testimony.\u201d This is plain error. The words should be considered with all that other testimony. S. v. Minton, supra.\nThe exception and assignment of error to the charge is well taken, and a new trial is ordered.\nNew trial.", "type": "majority", "author": "Parker, J." } ], "attorneys": [ "T. W. Bruton, Attorney General, and Harry W. McGalliard, Assistant Attorney General for the State.", "Robert L. Satterfield and Lee W. Settle for defendant appellant." ], "corrections": "", "head_matter": "STATE v. ROSS ALLISON.\n(Filed 12 January, 1962.)\n1. Criminal Law \u00a7 82\u2014\nThe burden of proving an alibi does not rest upon defendant, but evidence of an alibi is to be considered by the jury only in determining whether from all of the evidence the jury is satisfied of defendant\u2019s guilt beyond a reasonable doubt.\n2. Criminal Law \u00a7 106\u2014\nAn instruction placing the burden upon defendant to prove an alibi must be held for prejudicial error notwithstanding that in other portions of the charge the correct rule is given that defendant does not have the burden of proving an alibi but that evidence of an alibi should be considered by the jury in determining whether the jury is convinced of the fact of guilt beyond a reasonable doubt from all of the evidence in the case. It is also error to charge that evidence of an alibi be \u201cconsistent\u201d with all the other evidence instead of \u201cconsidered\u201d with all the other evidence.\n3. Criminal Law \u00a7 151\u2014\nThe Supreme Court is bound by the record as certified.\nAppeal by defendant from Williams, J., August Term 1961 of ORANGE.\nCriminal prosecution upon an indictment charging the defendant with the felony of an assault with intent to commit rape upon Clannies Strayhorn, a female. G.S. 14-22.\nPlea: Not Guilty. Verdict: Guilty as charged.\nFrom a judgment of imprisonment, defendant appeals.\nT. W. Bruton, Attorney General, and Harry W. McGalliard, Assistant Attorney General for the State.\nRobert L. Satterfield and Lee W. Settle for defendant appellant." }, "file_name": "0240-01", "first_page_order": 276, "last_page_order": 280 }