*1 759 TERM, 1959. State v. Dishman. situa- Charlotte, ready a left Of a similar getting
ards to make turn.” signal, given notice but not hand tion, where circumstances 279, N.C. 78 Hudson, of 239 S.E. Ervin, Justice the case Cozart v. “ ihaidj so, the warrants the 881, say: being 2d this to . . . this whatever between the fail- there was no causal connection inference subsequent ure plaintiff give signal hand collision. of proxi- perform duty The constitute one omission cannot doing duty omitted of an mate causes accident unless 523, v. 246 N.C. 98 prevented Fultz, Coach Co. have accident.” 804; 103, 243 89 S.E. 2d 860; Engineering Co., S.E. 2d N.C. Barker v. The charge 2d Jernigan Jernigan, 430, v. 236 N.C. 912. with, motorists intersections was accord respective duties of at v. actually quoted from, following oases: Coach Co. and much of 245; 652, v. 97
Fultz, supra; Cleaners, Mallette 553, Lacey, 2d v. 245 Taylor Brake, 686; N.C. 96 White v. 245 S.E. 1; 441, 241 85 364, Patterson, S.E. Marshburn v. N.C. S.E. N.C. 2d 337; 408, 683; Kapp, 2d 2d Hamilton Hamson v. S.E. 290, Ward, Finch v. 80 S.E. 2d Henry, Co., v 74 S.E. 2d Refining S.E. Hawes 361; Cooley Baker, Motor 65 S.E. 2d Matheny Co., 2d 115. plaintiff alleges error in the Finally, assignment foreseeability proximate a con- definition of cause and reasonable charged subject element the court in accord- stituent thereof. On Education, approved in Adams Board ance with the rules as Aldridge v. Lacey, supra; White Baker, supra. Hasty, Cooley contributory was free from charge negligence on the issue of error. jury negligence of both found the accident resulted resulting damage other for
parties. responsible Neither is to the fault, law leaves them where left having Both been found at tire themselves
No Error. v. BILLY DISHMAN.
STATE WAYNE March, 1959.)
(Filed 25 Law Appeal 19: Criminal § and Error § assignment sufficiency of an error must de- the form and While IN THE COURT. SUPREME v. Dishman. *2 ease, particular special .pend largely upon the circumstances assignment specifically point alleged required error the out the that discovery through voyage record, requiring and it a the without charge should, ordinarily, other out so evidence or the or set much the clearly present upon, to relied matter matter or circumstance as .to he debated. Criminal haw § investigating Statement officers to the effect that wanted find out and that it would better if what the truth defendant told happened, involuntary, does render a confession record where the hope lighter punishment for discloses that no was held out to defendant n andthat duress, fear, through did defendant not act or intimidation inducement, supports findings the record the court’s the admissions competent. voluntary were and therefore Parker, J., concurring in result.
Appeal J., defendant from Burgwyn, September, Term, E. Superior Court. GastoN the solicitor At the arraignment time of open announced in court: “The State capital seek rape, conviction of crime of but of such lesser offense justify.” as the might case Upon plea issues raised guilty, jury of not the court and heard numerous witnesses both for the State and the defendant. latter testified in his own defense. The jury “Guilty returned a verdict: of an female, on he being person assault a male over age of 18 years.” judgment jail From the imposing “for sentence less than nine nor more 12 months,” than appealed. Seawell,
Malcolm B. Attorney General, Harry McGalliard, W. Assistant Attorney General, the State. for Mullen, & Cooke, By: Holland Cooke appel- P. defendant, F. for lant.
Higgins, J. From time to time for more than 50 years, the Court
has stated
minimum requirements
assignments
valid
error.
“Just
specific
what will
sufficiently
assignment
constitute a
must de-
pend very
upon
largely
special
circumstances of
particular
case;
always
but
very
error
definitely
relied
should be
clearly presented,
compelled
and the Oourt
go beyond
the as-
signment itself
to learn what the
is. The assignment must specific
so
Court is given
that the
real aid
some
and a voyage of dis-
covery through an often
necessary.”
voluminous record
rendered
TERM, 1959.
v. Disttmax.
de-
the Court
“2. out in defendant’s EXCEP- The action of ’the as set (R p expressing opinion jury.” an to 21), TION #2 assignments require voyage discovery through These the record. they meaningless. Faulty assignments Otherwise are have occurred THE COURT. IN SUPREME Dishman. urgent reasons repeat we here some of frequency
with such any liti- deprive no desire to obeying the rules. This has heard on the merits. But 'opportunity to 'have 'his case gant of his spent on one necessary ease because when more than the time 'by must all members of the Court faulty .presentation, the time -lost emphasis needed, other we expense litigants. of other If at that records and briefs filed eases set to the fact call attention Term more than .argument during the Fall totaled for one week of pages. 3,000 .assignment 4 relates to the refusal of the
The defendant’s
relating to the
-all the evidence
grant
court
his motion
strike
made were in
ground
statements
so-called confession
assign
voluntary. Realizing
to recite in the
it would
cumbersome
stricken,
giving
assign
we are
ment all .the evidence asked to be
objected to arose out of
The evidence
ment due 'consideration.
investigating
officers stated
the de
following circumstances:
“ i:‘ *
truth. That
would be
'to find out the
fendant
wanted
happened.” The
go
he
ahead and tell us what had
(cid:127)better if
incriminating statements. He was a married
defendant then made
Auxiliary
years old,
and a member
Charlotte
Police.
man,
way
promises
or
nothing
Inquiry
court disclosed
behalf,
in his own
did not claim
.defendant,
duress. The
who testified
any
or acted under
intimidation
offered
inducement
he
incriminating
held the
making
statements.
threats
voluntary -and, therefore, .admissible.
statements were
*4
.authority
excluding
'admissions,
for
cites,
The defendant
case,
In
809,
202 N.C.
truth.
held out
through fear, duress, intimida
he acted
own evidence did
indicate
findings the admis
tion,
support
inducement. The facts
the count’s
Exum,
competent. State v.
voluntary and, therefore,
sions were
484, 193 S.E.
Caldwell, 212 N.C.
16, 195 S.E.
State v.
Rodman,
411; State v.
Stefanoff,
443,
174 S.E.
State 720,
The record fails to why disclose reason the verdict and judg- ment should be disturbed.
No Error. PARKER,J., concurring in result. In Livingston, S. 809, 337, the confession of the defendants was made after the statement -tothem that the chances were it would lighter be on them, they say if they got would property. A new trial was awarded. In v. Thompson, S. S.E. 2d the officers testi- “ fied Covington: told go Tt would better to on and tell us try the truth .; than to lie about it. . it would be better . to come on ” and tell the truth.’ The Court said it could held as a matter of law that the confession made after such statement the officers made the confession inadmissible.
In S. v. Thompson, the officers testi- the officers to “if he anything was: told us to tell the truth, truth, if he would not anything tell to tell at all.” The Court held the confession of the defendant made thereafter admissible.
In the instant case the officer told the “I thought defendant: if go be better he would ahead and tell happened.” us what had It is to be noted that in Livingston suggestion was that case guilt, Thompson defendants confess their and in the and Thomas suggestion was, substance, cases and in the instant case the to tell truth, to confess. In Thompson, supra, generally S. said: “The rule ap- Court proved is, prisoner nothing that ‘where the to tell advised but the ” . , , truth . his confession ... is admissible.’ .
The assignment
challenging
admissibility
of error
con-
late,
fession does
come too
because
raised
defendant as to
appears
the voluntariness
confession
771, 783,
State’s evidence.
Anderson,
S.
Gibson,
S. v.
The Court 2d 121: “It is Biggs, said S. respect conceded that if the of the voluntariness of the merely conflict, statements determination would were the court’s *5 be appeal. on v. Hairston, conclusive S.
885;
360;
Smith,
Whitener,
S. v.
S.E.
S.
Christy,
S v.
S.E.
S.
Page,
Burgwyn,
Equally
GMC
Trucks
Smiii-i.
‘w¡hat
established,
to such
however,
well
is the rule that
facts amount
voluntary
promises make
and admissible
threats or
'confessions not
judge
of
in the
law,
is a
of
the decision
question
and
Andrew,
court
nan
reviewed
Court.’
below
S. v.
Manning,
Crowson,
S.
S.
595,
Whether 'Statement the officer to question is of in 'evidence a confession and inadmissible involuntary is this Court. law, reviewable ruling 'and of court below statement my In law that the opinion, a matter of it cannot held.as was, substance, tell here, of officerto which in- involuntary and truth, nothing more, and his confession made I in the result. admissible evidence. concur TRUCKS, INC., a Corporation, HOLLINGSWORTH GMC North Carolina v. RALPH SMITH. LAMUEL March,
(Filed 1959.) Appeal 1. and 3— Error § immediately appeal motion to from denial of a An does lie exception appeal nonsuit, on but an for consideration movant note judgment. from final G.'S. 1-183. 2. Trial 21—§ presents question a of law to be decided motion to nonsuit While verdict, judge ruling on the motion is before -the court’s fieri any during may change ruling trial, his thereon at court 'time before verdict in. Appeal 46— 3. and Error § of A mere in an order that does it is in the recital entered exercise discretionary matter, ruling discretion it a and a court’s make rule, discretionary. is, a on a matter of law Appeal 4. and Error 3—§ granted counterclaim, nonsuit defendant’s after The court on but action, juror, jury’s plaintiff’s a on a failure'to reach verdict withdrew mistrial, Held: a and set aside .the nonsuit on the counterclaim. ordered law, Although striking out the nonsuit involved change ruling right his on motion had the time before right verdict, could affect a and therefore the exercise such right appealable. plaintiff, the action of the court substantial Appeal and Error §§ fragmen- tenus will a demurrer Whether the Court consider ore