State v. Ellison , 19 N.C. App. 38 ( 1973 )

HEDRICK, Judge.

Defendant, Jerry Ellison, contends the trial court erred:

“ . .in allowing one of the State witnesses, to-wit, Johnnie Carroll, Chief Deputy of Watauga County, to testify as to what the defendant, Jerry Ellison, told him on July 17, 1972, about taking a 22 pellet gun from the campground, without first making a finding that the statement was voluntarily made."

Prior to the admission of the challenged testimony, the trial court conducted a voir dire hearing in the absence of the jury and, after hearing testimony of Deputy Sheriff Carroll, found and concluded that both defendants were fully advised of their constitutional rights and “that any statement which either Jerry Ellison or Charles Ellison made to the officer was freely, understandingly and voluntarily given, without any threat or without any promise and may be received by this jury.”

There was plenary competent evidence to support these findings and conclusions of the trial court. “When the trial judge’s findings are based on competent evidence in the record, they are conclusive, and the reviewing court cannot properly set aside or modify such findings.” (Citations omitted.) State v. McRae, 276 N.C. 308, 314, 172 S.E. 2d 37, 41 (1970).

The record does not show clearly that the statement of Jerry Ellison challenged by this exception related to the finding that “any statement which either Jerry Ellison or Charles Ellison made to the officer was freely, understandingly and voluntarily given . ... ” The record shows, however, that when Jerry Ellison told Deputy Carroll that he took the pellet gun he had been advised of his constitutional rights. Moreover, Deputy-Sheriff Carroll had already testified that the defendants admitted “they were there” (referring to the site of the robbery). Assuming, arguendo, the court erred in admitting the challenged statement, it has not been made to appear that defendant was prejudiced thereby and that a different result likely would have ensued had this evidence been excluded. State v. Barrow, 276 N.C. 381, 172 S.E. 2d 512 (1970). Therefore, any error committed was harmless beyond a reasonable doubt. State v. Hudson, 281 N.C. 100, 187 S.E. 2d 756 (1972); State v. Barrow, supra.

Defendants assign as error the trial court’s instructions on the law of aiding and abetting.

We find and hold that when considered contextually, the court properly declared and explained the law of aiding and abetting arising on the evidence in the case.

Defendants contend the trial court erred in failing to instruct the jury that felonious intent is an essential element of armed robbery.

In various portions of the charge before and after the challenged instructions, the trial court properly charged the jury that felonious intent is a constituent element of the offenses of armed and common l^w robbery. Therefore, when considered contextually, the instructions of the trial court are free from prejudicial error.

Defendants assign as error the denial of their motions for judgment as of nonsuit.

There was plenary competent evidence to require submission of the case to the jury and to support the verdict.

Defendants had a fair trial free from prejudicial error.

No error.

Judges Britt and Vaughn concur.