State v. . Fox

Oct 2, 1929
Versions:197 N.C. 478
149 S.E. 735
1929 N.C. LEXIS 276
Clarkson, J.

Tbe evidence, from the record, is sufficient, with or without the confession of defendant, to be submitted to the jury to sustain a verdict of murder in the first degree. S. v. Miller, ante, 445.

Tbe defendant excepts and assigns error to bis Honor’s permitting the witness Grant to testify as to the contents of the telegram sent by defendant Eox to Rosa B. Ellis. Tbe witness, however, was standing by and beard what Fox said. Not only this, but be saw the man write down on the blank what Eox said: “I seen the man write it.” He said, “I like to know what you are talking about,” and to wire bim care of Greenville Western Union. It was no doubt introduced as some evidence to show Fox’s anxiety as to what Rosa B. Ellis meant when she told bim over the telephone that “I know something on you.” This was admissible for what it was worth-^-the probative force was for the jury.

Tbe defendant further excepts and assigns error: Tbat it was incompetent “to permit State’s witness, Dr. Large, to testify that the deceased, Jesse Taylor, was, in bis opinion, lying down when be received the fatal wound, and to further testify as to bis reasons, as it invades the province of the jury.” We cannot so bold.

*486 In S. v. Jones, 68 N. C., at p. 444, it is said: “Tbe only point made was as to the competency of the opinion of the physician wbo was examined for the State, as to the cause of death of the deceased, and of bis posture and position at 'the time be was shot. It was not denied that the opinion was competent as to the cause of death, but it was insisted that it was incompetent as to the póstur.e and position. ¥e suppose an expert might express an opinion of the posture and position from the range of the shot, and other circumstances.”

In McManus v. R. R., 174 N. C., at p. 737, the following observations are made: “It was also urged for error that Dr. McCoy, a witness for plaintiff, wbo bad made a professional examination of the intestate at the time, was allowed, over defendant’s objection, to testify that ‘from the nature, condition and position of the wounds, be was of opinion that the intestate was lying down at the time the same was inflicted.’ It will be noted that this witness, admitted to be an expert, spoke from a professional and- personal examination of the intestate, and the answer, to our minds, was clearly within the domain of expert opinion. Both question and answer are approved and upheld, we think, in Ferebee v. R. R., 167 N. C., 290; Parrish v. R. R., 146 N. C., 125; S. v. Jones, 68 N. C., 443.” Shaw v. Handle Co., 188 N. C., 222; Butler v. Fertilizer Works, 195 N. C., 409; Street v. Coal Co., 196 N. C., 178; see S. v. Carr, 196 N. C., 129.

Tbe most serious contention of defendant was the admission of the testimony of Grand Juror Sugg, wbo visited the jail for the purpose of inspection. Tbe defendant’s confessions to the officers, made prior to that time, were ruled out on the ground that defendant was induced to' make them from fear or hope. The court below, on the voir dire, found that they “were induced either by fear or hope, and that such statements as so 'alleged to have been made by defendant were not voluntary in their nature.” These confessions to the officers were, from the findings of the court, properly excluded, and the court below gave the rule that is followed^ in all civilized nations.

In S. v. Roberts, 12 N. C., at pp. 261-2 (1 Dev., 259), relied on by defendant, the law is thus stated by Henderson, J.: “Confessions are either voluntary or involuntary. They are called voluntary, when made neither under the influence of hope or fear, but are attributable to that love of truth which predominates in the breast of every man, not operated upon by other motives more powerful with him, and which, it is said, in the perfectly good man, cannot be countervailed. These confessions are the highest evidences of truth, even in cases affecting life. But it is said, and said with truth, that confessions induced by hope or extorted by fear, are, of all kinds of evidence, the least to be relied on, and are therefore entirely to be rejected. It seems to be admitted in this case, that the confessions first made, were of that character, and were therefore *487 rejected; but that being repeated to tbe same person some time after-wards, they lost their original character, assuming that of free and voluntary ones, and became evidence of the truth. But for what reason I am at a loss to conceive. How or whence does it appear, that the motives which induced the first confession had ceased to operate when it was repeated? It is not incumbent on the prisoner to show that they resulted from the same motives. It is presumed that they did, and evidence of the most irrefragable kind should be produced to show that they did not. It is sufficient that they may proceed from the same cause (4 Starkie, 49).”

In S. v. Fisher, 51 N. C., p. 478, Battle, J., shows that the reference made by Henderson, J., to Starkie, was from Ed. 1824, p. 49. The learned judge says that “In a subsequent edition (that of 1842, p. 36), Starkie somewhat modifies the rule, and says, ‘where a confession has once been induced by such means, all subsequent admissions of the same, or like facts must be rejected if they have resulted from the same influence.’ ” S. v. George, 50 N. C., 233; S. v. Lowhorne, 66 N. C., 638; S. v. Ellis, 97 N. C., 447; S. v. Harrison, 115 N. C., 706; S. v. Winston, 116 N. C., 990; S. v. Rodman, 188 N. C., 720; S. v. Whitener, 191 N. C., 659; 7 A. L. R., 420; S. v. Newsome, 195 N. C., 552.

In S. v. Lowhorne, supra, at p. 640, we find: “It is true, that in the case of S. v. Roberts (1 Dev., 259), the confession was made to the same person, but that, we think, can make no difference.”

In S. v. Drake, 113 N. C., at p. 628, Burwell, J., in regard to confessions, said: “It is a well settled rule that if promises or threats have been used, it must be made to appear that their influence has been entirely done away with before subsequent confessions can be deemed voluntary, and therefore admissible. And hence, it having been found that an improper influence was used to obtain the confession that was excluded, and it not having been made to appear that that influence had been in any way removed, the confession made on the journey to jail to one of the crown should also have been excluded. S. v. Drake, 82 N. C., 592.” S. v. Page, 127 N. C., 512; S. v. Bohanon, 142 N. C., 695; S. v. Whitener, supra.

“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.” S. v. Sanders, 84 N. C., at p. 730; S. v. Rodman, supra.

This Court, through Dillard, J., speaking to the subject in S. v. Sanders, supra (84 N. C.), at p..730, said: “Under the objection made, the admissibility of the confession depended on the facts accompanying it and the legal inference therefrom, the facts being matter for the decision of the judge and conclusive, and the sufficiency or insufficiency thereof to warrant the admission or exclusion of the evidence being matter of law reviewable in this Court. S. v. Andrew, Phil. (61 N. C.), 205; *488 S. v. Whitfield, 70 N. C., 356. If from the facts the -legal inference be that the confession was voluntary, then the evidence was receivable, otherwise, not.” S. v. Whitener, supra; Smith v. Kron, 96 N. C., at p. 396.

Tbe confessions made to the officers having been ruled out as incompetent, induced either by hope or fear, it must be made to appear that that influence has been done away with or removed before subsequent confessions can be deemed voluntary and therefore admissible. "When objection is made, the competency or incompetency must be beard on the voir dire. “V.oir dire — to speak the truth. This phrase denotes the preliminary examination which the court may make of one presented as a witness or juror, where bis competency, interest, etc., is objected to.” Black’s Law Die., p. 1212.

Tbe court below on the voire dire beard all the evidence introduced, including that of defendant, and found that the statement made to the grand juror was voluntary and admissible in evidence. There was evidence to sustain this ruling, therefore the testimony of the grand juror was properly admitted as evidence, in this we can see no error. From the whole record we can find

No error.