{ "id": 8559179, "name": "STATE OF NORTH CAROLINA v. FERRELL ROBBINS", "name_abbreviation": "State v. Robbins", "decision_date": "1969-10-15", "docket_number": "No. 3", "first_page": "537", "last_page": "550", "citations": [ { "type": "official", "cite": "275 N.C. 537" } ], "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": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "opinion_index": -1, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "52 S.E. 2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628997 ], "opinion_index": 0, "case_paths": [ "/nc/230/0174-01" ] }, { "cite": "145 S.E. 2d 7", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "265 N.C. 720", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8577029 ], "opinion_index": 0, "case_paths": [ "/nc/265/0720-01" ] }, { "cite": "241 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600615 ], "opinion_index": 0, "case_paths": [ "/nc/241/0047-01" ] }, { "cite": "245 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610972 ], "opinion_index": 0, "case_paths": [ "/nc/245/0344-01" ] }, { "cite": "271 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565553 ], "opinion_index": 0, "case_paths": [ "/nc/271/0576-01" ] }, { "cite": "146 S.E. 2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "266 N.C. 578", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561663 ], "opinion_index": 0, "case_paths": [ "/nc/266/0578-01" ] }, { "cite": "160 S.E. 2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "273 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575144 ], "opinion_index": 0, "case_paths": [ "/nc/273/0306-01" ] }, { "cite": "99 S.E. 2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "246 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627596 ], "opinion_index": 0, "case_paths": [ "/nc/246/0599-01" ] }, { "cite": "70 S.E. 394", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "154 N.C. 622", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653189 ], "opinion_index": 0, "case_paths": [ "/nc/154/0622-01" ] }, { "cite": "88 N.C. 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683453 ], "opinion_index": 0, "case_paths": [ "/nc/88/0634-01" ] }, { "cite": "17 S.E. 2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "220 N.C. 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11301082 ], "opinion_index": 0, "case_paths": [ "/nc/220/0226-01" ] }, { "cite": "132 S.E. 2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "260 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573304 ], "opinion_index": 0, "case_paths": [ "/nc/260/0133-01" ] }, { "cite": "153 S.E. 2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "269 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563543 ], "opinion_index": 0, "case_paths": [ "/nc/269/0329-01" ] }, { "cite": "148 S.E. 2d 565", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "267 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560001 ], "opinion_index": 0, "case_paths": [ "/nc/267/0599-01" ] }, { "cite": "119 S.E. 2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "254 N.C. 499", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627051 ], "opinion_index": 0, "case_paths": [ "/nc/254/0499-01" ] }, { "cite": "153 S.E. 2d 741", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "270 N.C. 25", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565060 ], "opinion_index": 0, "case_paths": [ "/nc/270/0025-01" ] }, { "cite": "154 S.E. 2d 95", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "270 N.C. 296", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567496 ], "opinion_index": 0, "case_paths": [ "/nc/270/0296-01" ] }, { "cite": "158 S.E. 2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "272 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571742 ], "opinion_index": 0, "case_paths": [ "/nc/272/0160-01" ] }, { "cite": "328 F. 2d 132", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 438957 ], "opinion_index": 0, "case_paths": [ "/f2d/328/0132-01" ] }, { "cite": "374 U.S. 23", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8495 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/374/0023-01" ] }, { "cite": "335 U.S. 451", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6159793 ], "weight": 2, "pin_cites": [ { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/us/335/0451-01" ] }, { "cite": "387 U.S. 294", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11336837 ], "opinion_index": 0, "case_paths": [ "/us/387/0294-01" ] }, { "cite": "388 U.S. 41", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167673 ], "opinion_index": 0, "case_paths": [ "/us/388/0041-01" ] }, { "cite": "162 S.E. 2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "274 N.C. 186", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559668 ], "opinion_index": 0, "case_paths": [ "/nc/274/0186-01" ] }, { "cite": "339 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 362790 ], "opinion_index": 0, "case_paths": [ "/us/339/0001-01" ] }, { "cite": "163 S.E. 2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "274 N.C. 295", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560020 ], "opinion_index": 0, "case_paths": [ "/nc/274/0295-01" ] }, { "cite": "367 U.S. 643", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1785580 ], "opinion_index": 0, "case_paths": [ "/us/367/0643-01" ] }, { "cite": "87 S.E. 2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614019 ], "opinion_index": 0, "case_paths": [ "/nc/242/0297-01" ] }, { "cite": "47 S.E. 2d 709", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "229 N.C. 111", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12164835 ], "opinion_index": 0, "case_paths": [ "/nc/229/0111-01" ] }, { "cite": "93 S.E. 2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219561 ], "opinion_index": 0, "case_paths": [ "/nc/244/0380-01" ] }, { "cite": "145 S.E. 2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "266 N.C. 99", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559704 ], "opinion_index": 0, "case_paths": [ "/nc/266/0099-01" ] }, { "cite": "23 S.E. 2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "222 N.C. 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630661 ], "opinion_index": 0, "case_paths": [ "/nc/222/0418-01" ] }, { "cite": "121 S.E. 2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "255 N.C. 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569469 ], "opinion_index": 0, "case_paths": [ "/nc/255/0358-01" ] }, { "cite": "183 S.E. 543", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "209 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2221316 ], "opinion_index": 0, "case_paths": [ "/nc/209/0117-01" ] }, { "cite": "161 S.E. 2d 560", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "274 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559380 ], "opinion_index": 0, "case_paths": [ "/nc/274/0062-01" ] }, { "cite": "117 S.E. 2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625207 ], "opinion_index": 0, "case_paths": [ "/nc/253/0348-01" ] } ], "analysis": { "cardinality": 1130, "char_count": 30693, "ocr_confidence": 0.588, "pagerank": { "raw": 6.841636288293053e-07, "percentile": 0.9642322776347192 }, "sha256": "632ba7c012db3586c040de7107f9ad178cae5f8b9f54ef0e3ffdbebe1fe47be2", "simhash": "1:a76315373607b279", "word_count": 5259 }, "last_updated": "2023-07-14T18:50:20.593891+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. FERRELL ROBBINS" ], "opinions": [ { "text": "BRANCH, J.\nDefendant moved for judgment as of nonsuit on the first degree murder charge at the conclusion of the State\u2019s evidence and at the close of all the evidence. Pie assigns as error the failure of the court to grant his motions.\nMurder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. A specific intent to kill is a necessary constituent of the elements of premeditation and deliberation in first degree murder. State v. Downey, 253 N.C. 348, 117 S.E. 2d 39; State v. Propst, 274 N.C. 62, 161 S.E. 2d 560.\nIn State v. Buffkin, 209 N.C. 117, 183 S.E. 543, it is stated:\n\u201cPremeditation means thought over beforehand for some length of time, however short, but no particular time is required for the mental process of premeditation. Deliberation means revolving over in the mind. A deliberate act is one done in a cool state of the blood in furtherance of some fixed design.\u201d\nSince defendant offered evidence after his motion for judgment as of nonsuit at the close of the State\u2019s evidence, we consider only the denial of the motion made at the close of all the evidence, and we must act in light of all the evidence. State v. Leggett, 255 N.C. 358, 121 S.E. 2d 533; State v. Norton, 222 N.C. 418, 23 S.E. 2d 301; G.S. 15-173.\nDefendant\u2019s motion for judgment as of nonsuit presented the question of whether the State had presented substantial evidence \u2014 circumstantial, direct, or both \u2014 that defendant acted with premeditation and deliberation. We must take the evidence in the light most favorable to the State when considering this question. State v. Bogan, 266 N.C. 99, 145 S.E. 2d 374; State v. Stephens, 244 N.C. 380, 93 S.E. 2d 431.\nIn connection with this assignment of error we quote the following testimony:\nDefendant\u2019s witness Dean Sheehan: \u201cMr. Robbins told me they made an agreement. That they were in trouble and couldn\u2019t get along, and if he would promise to kill himself, she would let him kill her and kill himself, and said she started to walk toward the front door and turned around and he shot her.\u201d\nState\u2019s witness Oris Bridges: \u201c. . . (T)he telephone rang and it was Ferrell Robbins. He called me and said I know where she (deceased wife) is and how she got there. He said, \u2018she will be sorry of this, in fact, the whole family will be sorry and I do mean sorry.\u2019 \u201d\nState\u2019s witness Damon Huskey: \u201cFerrell Robbins told me, T shot my wife, how is she getting along.\u2019 I told him I was sorry. He said, \u2018Well, I\u2019m not, she is better off, and I would do it again, and you will never try me, I will kill myself.\u2019 I told him I was arresting him for murder. When I asked how come you shot her, Ferrell Robbins said because she was going to leave, because her daughter wanted her to go with them down east somewhere, Charlotte or somewhere.\u201d\nWe think this testimony, when considered with all the evidence, discloses facts which constitute substantial evidence of premeditation and deliberation on the part of defendant. Thus, the trial court properly overruled defendant\u2019s motion for judgment as of nonsuit.\nDefendant contends that the court erred in failing to suppress the testimony of Deputy Sheriff Russell Duncan as being the product of an illegal search and seizure, in violation of Art. 1, \u00a7 15, of the North Carolina Constitution and the Fourth Amendment to the United States Constitution.\nThe Fourth Amendment to the United States Constitution and Art. I, \u00a7 15, of the North Carolina Constitution guarantee that, in ordinary circumstances, even the strong arm of the law cannot invade the home except under authority of a search warrant issued in accord with statutory provisions, In re Walters, 229 N.C. 111, 47 S.E. 2d 709, and evidence obtained by an illegal search without a search warrant is inadmissible. G.S. 15-27. State v. Smith, 242 N.C. 297, 87 S.E. 2d 593; Mapp v. Ohio, 367 U.S. 643, 6 L. ed 2d 1081.\nThe constitutional rights of a defendant are not violated by a warrantless search unless the search is unreasonable. State v. Colson, 274 N.C. 295, 163 S.E. 2d 376; District of Columbia v. Little, 339 U.S. 1, 94 L. ed. 599. The reasonableness of the search must be determined by the court from the facts and circumstances of each individual case. State v. Howard, 274 N.C. 186, 162 S.E. 2d 495; Berger v. New York, 388 U.S. 41, 18 L. ed 2d 1040.\nThis Court has defined an unreasonable search to be \u201c\u2018an examination or inspection without authority of law of one\u2019s premises or person, with a view to the discovery of . . . some evidence of guilt, to be used in the prosecution of a criminal action.\u2019 47 Am. Jur., Searches and Seizures \u00a7 52.\u201d State v. Colson, supra.\nThe United States Supreme Court considered this question in the case of Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 18 L. ed. 2d 782. There, the police entered respondent\u2019s home with his wife\u2019s permission minutes after being informed that an armed robbery had occurred and that the suspect had entered respondent\u2019s house. Respondent was in the house feigning sleep. He was arrested and the officers, without a search warrant, found damaging evidence which was introduced at his trial. The Supreme Court, in holding the entry and search valid, stated:\n\u201cWe agree with the Court of Appeals that neither the entry without warrant to search for the robber, nor the search for him without warrant was invalid. Under the circumstances of this case, \u2018the exigencies of the situation made that course imperative.\u2019 McDonald v. United States, 335 U.S. 451, 456. The police were informed that an armed robbery had taken place, and that the suspect had entered 2111 Cocoa Lane less than five minutes before they reached it. They acted reasonably when they entered the house and began to search for a man of the description they had been given and for weapons which he had used in the robbery or might use against them. The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential. . . .\u201d\nIn the case of State v. Howard, supra, Justice Sharp, speaking for the Court, stated:\n\u201c. . . If the officers\u2019 presence was lawful, the observation and seizure of what was then and there apparent could not in itself be unlawful. Harris v. United States, supra; Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. ed. 2d 726; United States v. Horton, 328 F. 2d 132 (3rd Cir.)\n\u201cNeither the Fourth Amendment nor G.S. 15-27 is applicable where no search is made. The law does not prohibit a seizure without a warrant by an officer in the discharge of his official duties where the article seized is in plain view. State v. Craddock, 272 N.C. 160, 158 S.E. 2d 25; State v. Kinley, 270 N.C. 296, 154 S.E. 2d 95; State v. Bell, 270 N.C. 25, 153 S.E. 2d 741; State v. Giles, 254 N.C. 499, 119 S.E. 2d 394; Ker v. California, supra; Harris v. United States, supra.\u201d\nIn the instant case the officer was not engaged in a search for evidence to be used in a criminal prosecution. He entered defendant\u2019s dwelling at the request of defendant\u2019s brothers, who were very apprehensive and worried about defendant. Under the present law the officer would not have had any basis to request a search warrant since he could not allege a particular object which he sought. State v. Bullard, 267 N.C. 599, 148 S.E. 2d 565. He was simply lending the strong arm of the law to a distressed family who feared that harm had come to their brother and sister-in-law. The officer\u2019s presence was lawful and his testimony as to things in plain view was properly admitted into evidence.\nFor the same reasons stated above, defendant\u2019s objections to admission of State\u2019s Exhibits, discovered as a result of Deputy Duncan\u2019s entry into defendant\u2019s house, are overruled.\nDefendant assigns as error the action of the court in allowing the witness Oris Bridges to testify to a conversation which he allegedly heard between defendant and his niece, Jackie Brandle, as being in violation of the hearsay rule. The pertinent portion of this testimony was as follows:\n\u201cJackie walked up to the bed and told Ferrell- \u2014 \u2022\nMR. MAHONEY: Objection\nCOURT: Overruled.\nEXCEPTION NO. 105\n\u25a0 A. \u2014-that the funeral home was ready for some clothing and we wanted some clothing and Ferrell said-\u2014\nMR. MAHONEY: Objection to what Ferrell said.\nCOURT: Overruled.\nEXCEPTION NO. 106.\nA. \u2014they were in storage and one of his brothers would get them for us, and Jackie said \u2014\nMR. MAHONEY: Objection to what Jackie said.\nCOURT: Overruled. EXCEPTION NO. 107.\nA. \u2014Jackie Brandle, my niece asked Ferrell if he had any insurance and he said \u2014\nOBJECTION OVERRULED EXCEPTION NO. 108\nA. \u2014he said 'You've got the insurance in Raleigh/ and Jackie said \u2018Why did you do this?\u201d\nMR. MAHONEY: Objection, if your Honor please.\nCOURT: Overruled.\nEXCEPTION NO. 109.\nA. \u2014and he says, \u2018I killed her and I\u2019m not a bit sorry of it, because she was mine. She was going to leave me and go with you and I killed her and I\u2019m not a bit sorry of it.\u2019\nQ. Then what did she ask about her mother?\nA. Jackie said, \u2018Ferrell, how long did you make my mother suffer?\nMR. MAHONEY: Objection now.\nCOURT: Overruled.\nEXCEPTION NO. 110.\nA. He was lying on his back and he put kind of shrugged his shoulders and raised his hands up off the bed and says, \u2018Oh, just a few seconds. It was all over within just a few seconds.\u2019 \u201d\nWe note, parenthetically, that defendant offered testimony of one Dallas Aerial, the guard assigned to defendant, to the effect that he was present when defendant talked with Jackie Brandle and that he never heard the statements which defendant allegedly made to her.\nIt is well settled law in this jurisdiction that in a criminal prosecution admissions of fact by a defendant pertinent to the issue which tend to prove his guilt of the offense charged are competent against him. State v. Porth, 269 N.C. 329, 153 S.E. 2d 10; State v. Woolard, 260 N.C. 133, 132 S.E. 2d 364; State v. Abernethy, 220 N.C. 226, 17 S.E. 2d 25; State v. Lawhorn, 88 N.C. 634.\nThe case of State v. Hopkins, 154 N.C. 622, 70 S.E. 394, is factually similar to the instant case. There, a police officer was allowed to testify to a conversation he overheard between one Streeter and the defendant, which tended to establish the guilt of the defendant upon an indictment charging unlawful sale of liquor. Holding the evidence competent, the Court stated:\n\u201cSuch evidence does not constitute the ex parte declaration of Streeter, as contended, but it is competent because it is a conversation of the defendant with Streeter and tends to prove the guilt of the accused by his own declarations.\u201d\nIn support of his contention that this evidence is barred by the hearsay rule, defendant quotes from Stansbury, North Carolina Evidence, \u00a7 138, at 335, as follows:\n\u201cEvidence, oral or written, is called hearsay when its probative force depends, in whole or in part, upon the competency and credibility of some person other than the witness by whom it is sought to produce it.\u201d\nWe agree that this is a correct statement of the law; however, defendant can find no comfort in this definition, since the probative force of the evidence did not depend upon the competency or credibility of some person other than the witness. Here, the witness testified as to what he actually heard defendant say.\nDefendant also cites the case of Jones v. Bailey, 246 N.C. 599, 99 S.E. 2d 768, as authority to support this contention. Jones v. Bailey was a civil action in which plaintiff sought to testify as to statements made by a police officer in answer to an inquiry by defendant. The answer given by the police officer tended to establish relevant facts against defendant. The Court held this evidence inadmissible. However, Jones v. Bailey is distinguishable from the instant case because the statements of fact offered against the defendant were not made by the defendant.\nThe testimony here offered tended to establish motive on the part of defendant to commit the crime and to otherwise establish his guilt. We therefore hold that the admissions made by defendant were properly admitted into evidence. Neither was the admission of the questions contained in the colloquy between Jackie Brandle and defendant erroneous. The questions were necessary to make the purported admissions intelligible.\nWe next consider the question of whether the trial court committed prejudicial error by asking Deputy Sheriff Duncan leading questions when he was examined on a voir dire hearing in absence of the jury. The trial judge, inter alia, questioned the officer as follows:\n\u201cIn other words, in addition to the duties of your office to arrest persons accused of crime and investigate the violation of the criminal laws, your office also has the duty and undertakes to carry out the duty of protecting the lives of the citizens of Rutherford County and other people in Rutherford County when the violations of the criminal law are not involved.\nA. Yes Sir.\nEXCEPTION NO. 19\nCOURT: And it was in the performance of this duty that you first entered into the home of Ferrell Robbins?\nA. Yes Sir.\nEXCEPTION NO. 20.\nHad the jury been present, the trial judge would have been justified in propounding competent questions in order to develop some relevant fact which had been overlooked. State v. Kirby, 273 N.C. 306, 160 S.E. 2d 24. A fortiori, the trial judge was justified in asking such questions in the jury\u2019s absence, even though the questions may not have been properly framed. None of the evidence was ever before the jury. See State v. Pressley, 266 N.C. 578, 146 S.E. 2d 824.\nOn the same voir dire hearing, in the absence of the jury, Officer Duncan testified, in part:\n\u201cCOURT: Did you get a radio message, Mr. Duncan, to go to the Robbins\u2019 house?\nEXCEPTION NO. 29.\nA. No, sir, I got a telephone call.\nCOURT: Who was it from?\nEXCEPTION NO. 30\nA. The jailer. He said that his brothers were at the jail and concerned about their brother and the sheriff said for me to go down there. The brothers are the ones who wanted me to go, the sheriff sent me but at the brothers\u2019 request. The man who talked to me on the telephone didn\u2019t say anything about a felony being committed he said there was trouble. That they were concerned about their brother and they couldn\u2019t get in and that there was some trouble in the house and they were worried.\u201d\nIn 2 N.C. Index 2d, Criminal Law, \u00a7 73, at 573, we find the following:\n\u201cWhile testimony of extrajudicial assertions of a third person is incompetent to prove the truth of the facts asserted by such person, the hearsay rule does not preclude testimony of such assertions for the purpose of showing the state of mind of the witness in consequence of such assertions and not for the purpose of proving the matters asserted.\u201d\nClearly the challenged testimony was elicited so that the trial judge could determine why the witness acted as he did. The state-m'ent of the jailer proved no relevant facts. Again, this testimony was not before the jury and the content of the testimony was not harmful or prejudicial to defendant\u2019s defense.\nDefendant assigns as error the action of the trial judge in allowing Sheriff Huskey to testify that as a result of a telephone conversation with the deceased he told her to leave the county.\nSheriff Damon Huskey, a State\u2019s witness, testified: \u201cI talked to Mrs. Beatrice Robbins on Saturday, May 4, 1968 about lunchtime by telephone. ... I told her to go back into the house and get her stuff and leave the county.\u201d The Sheriff had previously testified under cross-examination by defendant: \u201cWhen I asked how come you shot her, Ferrell Robbins said because she was going to leave, because her daughter wanted her to go with them down east somewhere, Charlotte or somewhere. I knew the deceased, Beatrice Robbins, was down in Raleigh at the home of her daughter, Mrs. Jacqueline Brandle, for a week or ten days before May 5, 1968.\u201d\nDefendant contends that this testimony prejudiced defendant because it amounted to an inference that it was dangerous for deceased to go to her home while defendant was there. The State, on the other hand, contends that this evidence is admissible to show motive. However, without reaching the merits of either contention, it is apparent that the admissions of this evidence becomes harmless and was cured by the testimony elicited by defendant from the Sheriff (quoted above), and for the further reason that defendant\u2019s witness Dean Sheehan thereafter gave powerful evidence of motive, premeditation and deliberation when he testified concerning a suicide pact between defendant and deceased.\nThe admission of testimony over objection is ordinarily rendered harmless when defendant elicits similar testimony on cross-examination or introduces similar testimony himself. State v. Jarrett, 271 N.C. 576; State v. Adams, 245 N.C. 344; State v. Humbles, 241 N.C. 47. This assignment of error is overruled.\nThe trial court\u2019s charge to the jury is challenged because of the failure of the court to define the term \u201cmalice\u201d in charging on first degree murder, even though the court had previously defined the term.\nThe Judge correctly defined \u201cmalice\u201d before he reached the charge on murder in the first degree. He correctly defined the crime of murder in the first degree, including the necessity that the killing be with \u201cmalice\u201d. The trial judge is not required to repeat a definition each time a word or term is repeated in the charge when it has once been defined. State v. Davis, 265 N.C. 720, 145 S.E. 2d 7; State v. Tyndall, 230 N.C. 174, 52 S.E. 2d 272. When the charge is read contextually, we do not think that the jury was misled or confused by such omission. This assignment of error is overruled.\nWe have carefully examined defendant\u2019s other assignments of error and find no prejudicial error.\nNo error.", "type": "majority", "author": "BRANCH, J." } ], "attorneys": [ "Attorney General Morgan and Deputy Attorney General Moody for the State.", "J. Nat Hamrick for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FERRELL ROBBINS\nNo. 3\n(Filed 15 October 1969)\n1. Homicide \u00a7 4\u2014 first-degree murder \u2014 elements\nMurder in tbe first degree is the unlawful killing of a human being with malice and with premeditation and deliberation.\n2. Homicide \u00a7 4\u2014 first-degree murder \u2014 intent to kill\nA specific intent to kill is a necessary constituent of the elements of premeditation and deliberation in first-degree murder.\n3. Criminal Law \u00a7 176\u2014 review of judgment on motion to nonsuit \u2014 consideration of evidence\nWhere defendant offered evidence after his motion for judgment as of nonsuit at the close of the State\u2019s evidence, the Court on appeal will consider only the denial of the motion made at the close of all the evidence, and the Court must act in light of all the evidence. G.S. 15-173.\n4. Homicide \u00a7 21\u2014 nonsuit motion \u2014 premeditation and deliberation \u2014 sufficiency of evidence\nDefendant\u2019s motion for judgment as of nonsuit in a homicide prosecution presents the question of whether the State has presented substantial evidence \u2014 circumstantial, direct, or both- \u2014 that defendant acted with premeditation and deliberation.\n5. Homicide \u00a7 21\u2014 first-degree murder \u2014 premeditation and deliberation \u2014 nonsuit\nIn prosecution charging defendant with the first-degree murder of his wife, there was substantial evidence of premeditation and deliberation on the part of defendant to withstand motion for nonsuit.\n6. Constitutional Law \u00a7 21\u2014 right to security in the home \u2014 search warrant\nThe Fourth Amendment to the U. S. Constitution and Art. I, \u00a7 15, of the N. O. Constitution guarantee that, in ordinary circumstances, even the strong arm of the law cannot invade the home except under authority of a search warrant issued in accordance with statutory provisions.\n7. Criminal Law \u00a7 84\u2014 evidence obtained by illegal search \u2014 competency\nEvidence obtained by an illegal search without a search warrant is inadmissible. G.S. 15-27.\n8. Searches and Seizures \u00a7 1; Criminal Law \u00a7 84\u2014 warrantless search \u2014 test of unreasonableness\nThe constitutional rights of a defendant are not violated by a warrant-less search unless the search is unreasonable.\n9. Searches and Seizures \u00a7 1\u2014 reasonableness of search\nThe reasonableness of the search must be determined by the court from the facts and circumstances of each individual ease.\n10. Searches and Seizures \u00a7 1\u2014 what constitutes unreasonable search\nAn unreasonable search is an examination or inspection without authority of law of one\u2019s premises or person with a view to the discovery of some evidence of guilt to be used in a criminal prosecution.\n11. Searches and Seizures \u00a7 1; Criminal haw \u00a7 84\u2014 entry into defendant\u2019s home without warrant \u2014 crime scene \u2014 admissibility of testimony\nIn a prosecution charging defendant with the first-degree murder of his wife, a deputy sheriff\u2019s entry into defendant\u2019s home without a warrant was lawful, and consequently his testimony relating to the view of the crime scene inside the home was properly admitted in evidence, where the officer, unaware of the existence of any crime, entered the dwelling at the request of defendant\u2019s brothers who feared that harm had come to their brother and sister-in-law.\n12. Criminal haw \u00a7\u00a7 73, 77\u2014 admission by defendant \u2014 testimony of officer \u2014 hearsay rule\nTestimony by police officer as to a conversation he overheard between defendant and his niece in which defendant admitted his guilt of murdering his wife and stated his motive in doing so, is held, admissible, the testimony not being in violation of the hearsay rule since its probative force did not depend upon the competency or credibility of any person other than the officer.\n13. Criminal haw \u00a7 77\u2014 competency of admissions\nAdmissions of fact by a defendant pertinent to the issue which tend to prove his guilt of the offense charged are competent against him.\n14. Criminal haw \u00a7\u00a7 99, 170\u2014 conduct of trial \u2014 leading questions by trial court \u2014 voir dire\nTrial court did not err in asking deputy sheriff leading questions on a voir dire hearing in the absence of the jury.\n15. Criminal haw \u00a7 99\u2014 conduct of trial \u2014 questions by trial court\nThe trial court may propound competent questions to a witness in order to develop some relevant fact which had been overlooked.\n16. Criminal haw \u00a7 73\u2014 testimony of assertions of third person \u2014 admissibility \u2014 voir dire hearing\nTestimony by deputy sheriff as to statements of jailer over the telephone that there was trouble at defendant\u2019s home and that defendant\u2019s brothers were worried is held properly admitted on voir dire hearing in the absence of the jury, since the testimony was in explanation of why the officer went to defendant\u2019s home.\n17. Criminal haw \u00a7 169\u2014 admission of evidence \u2014 harmless error\nThe admission of testimony over objection is ordinarily rendered harmless when defendant elicits similar testimony on cross-examination or introduces similar testimony himself.\n18. Homicide \u00a7 25\u2014 instructions \u2014 first-degree murder \u2014 definition of \u201cmalice\u201d\nWhere the trial court in first-degree murder prosecution correctly defined the term \u201cmalice\u201d before it reached the charge on murder in the first degree, the court was not required to repeat the definition of \u201cmalice\u201d in its instructions on the elements of the offense.\n19. Criminal Raw \u00a7 113\u2014 instructions \u2014 repetition of the definition of a word\nWhere the trial court correctly defines a word in its charge to the jury, the court is not required to repeat the definition each time the word is repeated in the charge.\nAppeal by defendant from Martin, J., at November Session 1969, RutheRfoed Superior Court.\nAfter selection of the jury and before the State called its first witness, the defendant moved to suppress the State\u2019s evidence on the ground that it was secured by an unlawful search. The court then conducted a voir dire hearing to determine the admissibility of the testimony of Officer Russell Duncan. On voir dire Officer Duncan testified that on the morning of 5 May 1968 he was employed as a Deputy Sheriff of Rutherford County; that at approximately 9:15 A.M. on that date he went to the house of defendant, at the request of defendant\u2019s brothers, Elmer and Vernon Robbins, pursuant to a message relayed to him from the Sheriff of Rutherford County. Upon arriving at defendant\u2019s house, the officer stated that the brothers told him the following:\n\u201cThey stated that they received a telephone call earlier \u2014\n\u201c \u2014 \u25a0 earlier; that it was from Ferrell, but they couldn\u2019t understand what he was saying; that they was worried that something was wrong. . . .\n\u201cThey wanted to get in. They wanted to get in and find out what was wrong. In order to get into the house, I tried to pull the screen open by the handle, but I couldn\u2019t. So I took my knife and cut the screen . . . unlocked the screen . . . opened it . . . got hold of the door handle and tried to open the door . . . couldn\u2019t get it open . . . tried to kick the door down and I couldn\u2019t.\u201d\nThe officer then testified that one of the brothers brought him an iron bar which he used to break out a panel of glass in the door, so that he could reach inside the house, unlock the door, and gain entry into the house. Before entering the house, the officer said that he called as loud as he could to see if anyone would answer. He called for Mr. Ferrell Robbins and \u201chollered\u201d and beat on the door and the window without receiving any answer. He further testified:\n\u201cI figured something was wrong in the house, because the door was locked from the inside and nobody could have left and locked the screen from the inside and the door was locked from the inside and I figured there was somebody in there. Mr. Ferrell Robbins\u2019 car was parked in the yard.\u201d\n\"... I entered to find out what was wrong in the house, because they didn\u2019t answer. I wasn\u2019t searching the house, no.\u201d\n\u201c. . . The brothers are the ones who wanted me to go, the sheriff sent me but at the brother\u2019s request. The man who talked to me on the telephone didn\u2019t say anything about a felony being committed. . . .\u201d\nThe witness stated that upon entering the house he found the deceased, Beatrice Robbins, and defendant lying together on the floor near the front door. Mrs. Robbins was not breathing. He heard a gurgling sound and discovered that defendant was still alive. He found a rifle at the feet of defendant and several apparent bullet holes in the body of the deceased.\nVernon Robbins, a brother of defendant, testified that in response to a telephone call from defendant he went to defendant\u2019s house. On the way he picked up another brother, Elmer. They arrived at approximately 8:00 o\u2019clock A.M. and could not get into the house, and observed defendant\u2019s car was parked in front of the house. Vernon testified:\n\u201cWe stayed over at my brother\u2019s house five or ten minutes before we went over to the jail. He was in bad shape and had been all the time. I was concerned about him. I just wanted an officer to go in there and see what was wrong.\u201d\nAt the conclusion of the voir dire hearing, the trial judge made full findings of fact and conclusions of law and held \u201cthat the testimony of the witness Russell Duncan, is competent and admissible in the trial of this case, insofar as the objection to such testimony is concerned for violating of the search and seizure rule.\u201d Thereupon the State offered its first witness, Officer Russell Duncan, in the presence of the jury, and he substantially reiterated his voir dire testimony.\nThe State offered Sheriff Damon Huskey as a witness. The court again conducted a voir dire hearing to determine whether or not the statements made by defendant to the Sheriff would be admissible. On such hearing the Sheriff testified that he went to the hospital room of defendant and upon arrival defendant asked how his wife was getting along. The Sheriff told him that she was dead, and that \u25a0he was under arrest for murder. The Sheriff then \u201cadvised him of his rights\u201d as approved by Miranda v. Arizona, 384 U.S. 436. When the jury returned to the courtroom, the Sheriff merely testified as to wounds he observed on defendant. However, when the Sheriff was recalled for examination, defendant\u2019s attorney elicited testimony before the jury as to the conversation between himself and defendant in which defendant said he shot her \u201cbecause she was going to leave, because her daughter wanted her to go with them down east somewhere.\u201d He also testified about a statement he made to defendant\u2019s deceased wife to the effect that she should pack up her belongings and leave the county.\nState\u2019s witness Mrs. Nell Bridges stated that on 4 May 1968 she and Jackie Brandle and decedent went to the Robbins\u2019 house to get some clothes. As they started to leave, Robbins took hold of his wife\u2019s arm and said, \u201cI just want her to stay one hour and I will bring her.\u201d Deceased remained with her husband.\nAt the close of State\u2019s evidence, defendant moved for a judgment as of nonsuit on the first degree charge. Which was denied.\nDefendant offered evidence which tended to show that prior to 5 May 1968 he had been upset and despondent. Dr. Ernest Yelton said he had sent defendant to the hospital \u201cto get him off whiskey.\u201d He identified Defendant\u2019s Exhibit 1 as being Librium 25 mil. capsules.\nDr. Laczlco, an expert in psychiatry, testified that defendant was admitted to Dorothea Dix Hospital on 15 May 1968 and remained there under his care until his discharge on 1 July 1968. He stated that defendant was competent to return to court for trial, and that he knew right from wrong. He had no opinion as to whether defendant knew it was wrong to kill his wife as of 5 May 1968.\nDefendant offered other evidence which tended to show that on 5 May 1968 he was under the influence of a combination of Librium and whiskey, which caused a clouded consciousness, impaired judgment and impaired memory. Defendant testified and denied any memory of the events of 5 May 1968. He stated that he did not remember having killed his wife and had no memory of any discussions with anyone in which he had admitted killing his wife or making any pact with her in reference thereto.\nDean Sheehan, a special deputy assigned to guard defendant\u2019s room, testified that in a discussion with defendant, defendant told him that he shot his wife as a result of a suicide pact.\n; The jury returned a verdict of guilty of first degree murder with the recommendation that his punishment be imprisonment for life. Judgment was entered on the verdict, and defendant gave notice of appeal. Appeal was not perfected within the time allowed by the trial court. Defendant\u2019s attorneys petitioned that a writ of certiorari issue allowing him to perfect his appeal. This petition was allowed by order of this Court dated 17 February 1969.\nAttorney General Morgan and Deputy Attorney General Moody for the State.\nJ. Nat Hamrick for defendant." }, "file_name": "0537-01", "first_page_order": 567, "last_page_order": 580 }