State v. Biggs
224 N.C. 23
N.C.
1944
Check Treatment

Lead Opinion

Stacy, C. J.

Tbe question for decision is whether tbe statements in tbe nature of confessions made by tbe defendants were properly admitted in evidence. S. v. Exum, 213 N. C., 16, 195 S. E., 7. Tbe answer depends on whether tbe law pronounces them voluntary or involuntary. S. v. Farrell, 223 N. C., 804.

It is conceded that if tbe evidence in respect of tbe voluntariness of the statements were merely in conflict, tbe court’s determination would be conclusive on appeal. S. v. Hairston, 222 N. C., 455, 23 S. E. (2d), 885; S. v. Smith, 221 N. C., 400, 20 S. E. (2d), 360; S. v. Whitener, 191 N. C., 659, 132 S. E., 603; S. v. Christy, 170 N. C., 772, 87 S. E., 499; S. v. Page, 127 N. C., 512, 37 S. E., 66; S. v. Burgwyn, 87 N. C., 572. Equally well established, however, is tbe rule that “wbat facts amount to such threats or promises as make confessions not voluntary and admissible in evidence is a question of law, and tbe decision of tbe judge in tbe court below can be reviewed by this Court.” S. v. Andrew, 61 N. C., 205; S. v. Manning, 221 N. C., 70, 18 S. E. (2d), 821; S. v. Crowson, 98 N. C., 595, 4 S. E., 143. And further, where a “person in authority” offers some suggestion of hope or fear, S. v. Livingston, 202 N. C., 809, 164 S. E., 337; S. v. Grier, 203 N. C., 586, 166 S. E., 595, *27to one suspected of crime and thereby induces a statement in the nature of a confession, the decisions are at one in adjudging such statement to be involuntary in law, and bence incompetent as evidence. S. v. Anderson, 208 N. C., 771, 182 S. E., 643; Annotation 7 A. L. R., 423.

What are the effective considerations here?

The defendants were in jail at Danville, Virginia, under a charge of highway robbery committed in that State on 16 March, 1943. Officers from this State went to Danville to interrogate them in respect of the Swanson murder at Jamestown, North Carolina, on the night of 19 February, 1943. They were questioned on a number of occasions, including at the end the greater part of two days, 30 and 31 March, and they repeatedly told the officers they had no statement to make in respect of the Swanson case. Finally, they made the statements in the nature of confessions as above set out. Over objections, these statements were admitted in evidence against them.

A free and voluntary statement in the nature of a confession is deserving of the highest credit, because it is! presumed to flow from the strongest sense of guilt, but any statement wrung from the mind by the flattery of hope, or by the torture of fear, comes in such questionable shape as to merit no consideration. S. v. Patrick, 48 N. C., 443; S. v. Roberts, 12 N. C., 259. “Confessions are to be taken as prima facie voluntary, and admissible in evidence, unless the party against whom they are offered allege and show facts authorizing a legal inference to the contrary”—Dillard, J., in S. v. Sanders, 84 N. C., 729; S. v. Alston, 215 N. C., 713, 3 S. E. (2d), 11; S. v. Grass, 223 N. C., 31, 25 S. E. (2d), 193.

As bearing upon the influence which produced the defendants’ statements in the nature of confessions, whether prompted by the love of truth or induced by hope or fear, the record poses the following pertinent inquiries: Why was it a part of Zimmerman’s “scheme” to tell the defendants “they were liable to pay the death penalty” in Virginia? Why did he tell them that in North Carolina “as to what will be done with you will be left to the jury and the court” ? What impression did he intend to leave by these statements? Just before the admissions were made, Elmer Biggs wanted to know “something about first degree aiid second degree charge in North Carolina.” lie had already been informed “that under the law in Virginia they were liable to pay the death penalty.” Where did Elmer Biggs, a boy 20 years of age, get his knowledge of criminal procedure in this State and the idea that under the North Carolina law, second degree murder carries a maximum penalty of 30 years, and, in addition, the parole system obtains here? What was the purpose of discussing these considerations in connection with the Virginia statute (Va. Code 1942, sec. 4405), which prescribes death or *28life imprisonment as punishment for robbery with firearms? What bearing could they have had on the Swanson murder, except to induce an expression on the subject different from the repeated protestations of the defendants that they had no statement to make in' respect of the matter ?

We think the statements in the nature of confessions made by the defendants must be regarded as arising out of circumstances which render them involuntary, and, therefore, incompetent as evidence. The decision in S. v. Livingston, supra, and the eases there cited, would seem to be in direct support of the position. To say that no inducement was offered by “those in authority” would be to deny the natural import of the language used and the suggestions made, and withal the situation created by the presence of the solicitor. The effort of the trial court to obtain some satisfactory explanation of the sudden change on the part of the defendants appears to have been fully justified. The ease is equally as strong, if not stronger, than S. v. Anderson, supra, where a new trial was granted because of similar suggestions made by a State’s witness.

It is true, there is ample evidence to convict the defendants without their statements in the nature of confessions. But this in no way affects the competency • or materiality of the statements. They undoubtedly weighed heavily against the defendants. The law commands the death penalty only after a hearing free from error.

On the record as presented, a new trial seems necessary. It is so ordered.

New trial.





Dissenting Opinion

DeviN, J.,

dissenting: It was within the province of the trial judge to determine whether the admissions of guilt on the part of the defendants, offered in evidence, were voluntarily made, or were induced by promises of leniency. This was a preliminary question of fact for his decision. Before ruling thereon, in accord with correct procedure, in the absence of the jury, the judge heard all the testimony of the defendants and of the State’s witnesses bearing on the competency of this evidence. He was in position to judge of the credibility of those who deposed in his presence. It was his duty to determine and to declare the fact. As the result of his careful consideration of this testimony, he has found the fact to be that the admissions of guilt were voluntarily made.

The only ground upon which this Court can reverse the judge’s finding is that there was no evidence to support it. As the jurisdiction of this Court on appeal is confined to matters of law or legal inference (Art. IY, sec. 8), the only matter of law presented is whether there was any evidence to sustain the ruling appealed from.

*29Tbis principle was stated by Justice Reade in Cardwell v. Cardwell, 64 N. C., 621, as follows: “¥e can no more review tbe finding of a judge when it is bis province to find facts than we can review tbe finding of a jury.” In S. v. Andrew, 61 N. C., 205, Chief Justice Pearson said: “So, whether there be any evidence tending to show that confessions were not made voluntarily, is a question of law. But whether the evidence, if true, prove these facts, and whether the witnesses giving testimony to the court touching the facts are entitled to credit or not, and in case of a conflict of testimony which witness should' be believed by the court, are questions of fact to be decided by the judge, and his decision cannot be reviewed in this Court.” In S. v. Fain, 216 N. C., 157, 4 S. E. (2d), 319, the rule was stated in this language: “It is the established procedure with us that the competency of a confession is a preliminary question for the trial court, to be determined in the manner pointed out in S. v. Whitener, 191 N. C., 659, 132 S. E., 603, and the court’s ruling thereon will not be disturbed, if supported by any competent evidence.” And in the recent ease of S. v. Hairston, 222 N. C., 455, 23 S. E. (2d), 885, it was again declared to be the law that “The competency of a confession is a preliminary question for the trial court, and the court’s ruling will not be disturbed if supported by any competent evidence.”

Applying these well settled rules to the case at bar, I am unable to agree with the conclusion reached in the majority opinion. A careful consideration of all the testimony heard by the judge below leads me to the conclusion that there teas evidence to support his finding. True, there was a conflict in the testimony, but it was the judge’s province to determine the fact upon the preliminary question presented. I think he should be upheld.

Each of the three defendants in the hearing before the judge stated they were induced to confess by the promise made to them by Mr. Wilson, the State Solicitor, and by Mr. Zimmerman, a member of the State Bureau of Investigation, that if they would admit their guilt, the Solicitor would “put in” a bill of indictment for second degree murder and they would get 25 to 30 years, and in all probability would be out in five years. But these statements were denied by both Mr. Zimmerman and Mr. Wilson. Zimmerman testified, “No one in my presence made any threat ■against the defendants before they made a statement, nor were any promises made or offers to extend any leniency to them, and no one said ■anything to them about what they would be tried for except murder in the first degree.” He further said, “I made no promise of any kind to them as to how the charge against them would be handled.” True, this ■officer in the course of a prolonged cross-examination by two attorneys used the word “scheme” in referring to his purpose in questioning the defendants and stating (correctly it seems) that the crime for which *30they were in jail in Virginia was a capital felony in that state, but this-word, to which a sinister significance is attributed, was apparently suggested by the questioner rather than chosen by the witness, for in the-same connection he said his purpose was not to get a confession nor to-induce them to come to North Carolina. He repeatedly said no promises of leniency were made., I do not think this single expression, in whatever sense it was used, should be held in law or in fact sufficient to-nullify or contradict his previous testimony. Hadley v. Timún, 170' N. C., 84, 86 S. E., 1017.

Mr. Wilson testified that no promises of leniency were made, but that-on the contrary he warned the defendants they would be tried for murder-in the first degree, and, if they were not guilty, not to make any statement.

Deputy Sheriff Nance testified the defendants were advised that any statement made by them would or could be used against them, and that, “no threat or reward or promise or anything élse was made.” One of the defendants testified: “I don’t claim Mr. Donovant, Mr. Jones, Mr.. Nance or Mr. Scott or any other officer made any promises or threats that caused me to make the statement which I made over there,” but asserted he was induced only by the proposition made by the Solicitor-in the presence of Mr. Zimmerman, as previously noted.

It is worthy of note that at no time have the defendants denied their guilt. Neither in response to the questioning officers, nor in their statements to the judge did either of them deny they were the ones who shot Mr. Swanson to death. They refused to make any statement to the-officers until after they had been identified by four eye-witnesses of the-crime. Here was the situation: On the night of 19 February, 1943, Mr. Swanson, in his little store in the village of Jamestown, in the-presence of his wife and a friend, was shot to death by two young men in the attempt to hold up and rob him. A third man waited in a car outside. Two other witnesses saw the two men run out of the store after the shooting and get in the car, and saw the third man under the wheel as they drove away. A few weeks afterwards three men answering their general description were arrested in Danville, charged with the robbery with firearms in Virginia (holding up a filling station). The North Carolina officers went to Danville and questioned the suspects. They refused to make any statement. Then the four witnesses from Jamestown were taken to Danville to see if these suspects were the ones they had seen in Jamestown. These witnesses identified the defendants — • picked them out of a group of other prisoners — and told them they recognized them. Shortly thereafter, and after the three defendants had privately conferred together, they admitted their participation in the crime.

*31Tbe fact that the defendants were young men (one of them was 24, record, page 47), may not be considered as tending to render their confessions inadmissible in evidence on that ground. There is no suggestion they were not sui juris and in all respects competent. Their being ■charged with two capital felonies in different states would naturally lead them to inquire what could be done with them. According to the record, the officers informed them correctly. They were told that under the Virginia law they could be sentenced to the electric chair or life imprisonment; that in North Carolina they would be tried for murder in the first ■degree, and it was for the jury and the court to say what would be done with them. That might be considered as reason for waiving extradition, but not for confession. Th'e officers testified no promises of leniency were made them, and the judge so found. In S. v. Livingston, 202 N. C., 809, 164 S. E., 337, the officer admitted he told the defendants if they would tell “it would be lighter on them”; and in S. v. Anderson, 208 N. C., 771, 182 S. E., 643, the State’s witness admitted he told defendant Overman '“it would be better for him to go ahead and tell it.” But in the case at bar the record discloses no admissions by any State’s witness that inducements of this nature were held out to the defendants.

At the time the defendants were being questioned they were not in the ■custody of the North Carolina officers but in jail in Virginia. But, in .any event, neither the fact that they were in custody, nor the number of ■officers present (S. v. Stefanoff, 206 N. C., 443, 174 S. E., 411), nor that they were persistently questioned (S. v. Exum, 213 N. C., 16, 195 S. E., 7), would be alone sufficient to render the confessions incompetent, unless the admissions were in fact induced by promises of leniency or ■■some form of compulsion.

I think that the testimony of the State’s witnesses heard by the trial judge should be held to constitute some substantial evidence to support his finding of fact that the defendants’ admissions of guilt were voluntarily made, and that the court’s ruling on this preliminary question should be upheld.

ScheNcic and Seawell, JJ., concur in dissent.