*1 SUPREME COURT IN THE v. Lewis State [1, 2] Upon motion pros in a criminal judgment of nonsuit a for be must be taken to by the State ecution, the evidence introduced light favorable to the the most interpreted in true and it must be 469; Cook, 2d State Goines, 509, 160 S.E. 273 N.C. State. State 271 N.C. 156 S.E. 49; Cutler, N.C. 160 S.E. is witness Gaston considered, the When so 679. of first finding every of offense of element ample support was, therefore, no in the denial of the error degree burglary. There judgment of nonsuit. for defendant's motion assigned as error only ruling the court Although this of is charge the court carefully considered the defendant, have we granting for of a new trial. basis jury and find therein no objection appears No the face of the record. upon no error We find any evidence. The verdict of the admission of upon the record to the judgment evidence and the court is by the jury supported is the verdict. accordance No error.
STATE OF NORTH CAROLINA v. LEWIS No. 250
(Filed 1968) 20 November Corpus purpose corpus subjicien- 1— of writ of 1. Habeas habeas ad § dum corpus subjiciendum give writ of habeas The office ad is to liberty hearing legality of his an immediate so restrained inquired may into' determined. detention legality Corpus 2— determination Habeas restraint § corpus hearing for determination sole habeas petitioner imprisonment alleged lawfully deprived being whether is unlawful is then un- liberty. of his appellate Corpus review 4— 3. Habeas § involving Except custody children, 17-40, cases minor G.S. no any, being by corpus judgment, remedy, appeal from habeas lies if petition for a of certiorari which writ addressed the sound discre- appellate court. tion of Corpus identity finding 40— Criminal Law 4. Habeas § proceeding corpus prior habeas finding by corpus proceeding petitioner in a A the court person charged legal significance only in fact the indictment has petitioner for the court’s decision that as a basis is not entitled to his im- custody, significance determining from it has release but mediate guilty charged crime whether indictment. State v. Lf.wis *2 plea guilty 34— 51' Criminal Law of not § , every plea puts guilty of Defendant’s not in of issue essential element charged places prove beyond tlie crime and the burden on State to a charged, including all reasonable doubt essential of elements the crime identity person person on trial named in as the the- indictment. 37; Judgments Constitutional Law Law Criminal § § §§ — identity person prior finding 40— of in defendant as indicted — corpus hearing jury question identity to trial on of finding by corpus proceeding A the court in a habeas at which defend- person ant was awarded a new trial that defendant is in fact named judicata question upon in retrial, the indictment to not res as that defendant’s and the court’s refusal at to admit offered the retrial evidence which tended to defendant show that he in named prejudicial error, being indictment constitutes right defendant entitled of as jury every charged, to a trial as to essential element the crime including identity. as to his — applicability 7. Criminal Law 75— of Miranda ob- confession prior tained to June Arizona, apply Miranda v. 384 U.S. does not to confessions obtained 13, 1966, the date June when offered at trials or beginning thereafter, upon retrials where law enforcement officers relied complied and with constitutional standards at time the con- were made. fessions 48, 73, accomplice 8. Criminal Law in 79— statements §§ made presence defendant’s accomplice presence an in Statements made defendant’s which in- incompetent hearsay criminated defendant are as where defendant ver- bally assented and thereto stated officers detail both before and after accomplice statements, made the statements all facts included such being implied admission there no silence since defendant did not re- silent, being necessity and there no for main admission of the state- explain significance ments defendant’s assent thereto since de- same statements to the officers. fendant — Battery and 16— secret 9. Assault assault §§ felonious assault battery An indictment malicious secret assault and based 6.S. allegation which contains that the victim 14-31 iously of the assault was ser- injured support insufficient to a conviction felonious assault 14-32. as defined G.S. concurring dissenting J., part part. Lake, J., joins concurring Higgins, dissenting opinion. of certiorari Appeals. writ Court of
ON tried the October Defendant 1967 Criminal Session of before Superior Morris, Nash Emergency Judge, and a jury, August returned at Term, indictment charged COURT IN SUPREME THE v. wilfully did “feloniously Lewis, B. on December Jessie with battery a commit assault manner, maliciously in a secret Bailey by H. iron one R. piece wit: weapon deadly Bailey. kill said H. R. intent waylaying otherwise that offered the State. It admitted evidence in behalf of Evidence offered support the verdict. was sufficient to opinion, was excluded. to in the defendant, referred “guilty deadly secret assault with jury found Judgment imposing bill of indictment.” charged weapon, years, with a credit of four months and six- ten prison sentence of *3 (s), pronounced. sentence was served days for time teen Appeals found error. appeal, the Court of 1 Upon defendant’s August on On 2d 497. defendant’s App. 296, 161 S.E. N.C. granted. was petition, certiorari Deputy Attorney General
Attorney Bruton and McGal- General liard the State. for appellant.
Fields, Cooper & Henderson for defendant J. Bobbitt, con- Session, defendant At his trial at 1967 October Criminal hearing corpus Judge
tended, as he at a before had contended habeas B. Lewis. Cowper February 13, 1967, that he not Jessie August had pleaded At B. Lewis nolo contendere Term, 1955 Jessie years Judgment imposing prison ten to the sentence of indictment. brought or returned pronounced. escaped. He Defendant prison January in 1965. under the North Carolina On Richardson, M.D.,” petition defendant filed name, “Harold B. corpus. corpus hearing, writ of habeas At the habeas did B. nor attack 1955 indictment Jessie Lewis the State’s sought imprison immediate Jessie B. Lewis. He release from was not B. as custody ground on the he Jessie Lewis. Evidence by identity was offered the State and defendant’s defendant. disputed question Cowper finding resolved the Judge of fact B. Lewis and Dr. Harold Richardson "that Jessie B. are one finding Judge of fact, Cowper Based on person.” same de- petition discharge for immediate from custody. defendant’s nied corpus hearing, Judge came to Cowper’s At the habeas atten- represented Lewis had not been Jessie B. counsel tion' at Judge Cowper Thereupon, Term. vacated August plea 1955 FALL TEEM 441 State v. (and
judgment August pleas judg- at Term also entered involving Lewis), ments other cases Jessie B. and ordered that defendant be held for trial on B. the 1955 indictment Jessie Lewis. quotes
It is by Judge Morris, noted that order entered which Judge Cowper’s from order of of in- February 13, 1967, our source concerning formation preceding para- the matters set forth in the graph. The record before us not contain the pro- does the minutes of ceedings August at 1955 Term nor corpus the record the habeas proceedings.
At his trial
October
Criminal Session,
after the
had
rested its case, defendant offered witnesses whose
testimony,
was taken in
jury,
the absence of the
show
had known
they
tended to
person
Jessie B. Lewis and that the
was not
Jessie B. Lewis.
court
proffered
ground
excluded this
find-
testimony on
ing previously
by Judge Cowper
that defendant was Jessie B.
Lewis,
charged
person
indictment,
constituted res
judicata
identity
as
excepted
on trial. Defendant
assigned
to and
error
ruling.
the court’s said
Judge Cowper
The writ returnable before
was a writ of
[1-3]
corpus
ad subjiciendum,
Corpus
25 Am.
Habeas
Jur.,
Aptly
great
described as “the
writ in all manner of
efficacious
illegal confinement,”
guaran
Blackstone Commentaries
it is
I,
teed
Article
Section
of North Carolina.
Constitution
Herndon,
N.C.
S.E. 268. The office of this “most
*4
English law,”
celebrated writ
3 Blackstone Commentaries
give
“is to
129,
person
liberty
a
restrained of his
hear
immediate
legality
ing so that
of
detention may
inquired
his
into and
C.J.S.,
Corpus
question
determined.” 39
Habeas
4. “The sole
for
§
hearing
alleged
determination
habeas corpus
im
unlawful
for
prisonment
petitioner
being
is then
unlawfully deprived
whether
re
liberty.”
Renfrow,
55,
315,
of his
In
247 N.C.
59,
317,
100 S.E. 2d
In
Burton,
and cases cited. Accord:
re
N.C. 534, 540,
126 S.E.
581,
involving
Except
custody
586.
cases
of
children,
minor
judgment
a
17-40,
appeal
lies from
on
a
G.S.
rendered
return to
corpus.
Steele,
of
In
685,
writ
re
687,
220 N.C.
18 S.E. 2d
132, 134,
cited;
Renfrow, supra.
and cases
In re
remedy,
any,
The
if
by petition
certiorari,
of
for writ
addressed to the sound discretion
appellate
Croom,
of
re Lee
court.
N.C. 455,
State Assuming indictment. charged in crime guilty ant entitled to is not accusation, prisoner and sufficient process valid pending his confinement is shown for discharge 'probable if cause supra. Herndon, v. State trial. judg- and the B. Lewis plea if the of Jessie defendant,
Whether have been en- vacated, not been would thereon had pronounced ment have the proceedings otherwise, to corpus in the habeas titled, jury, pre- a is not identity decided question as to controverted plea judgment. vacated the Judge Cowper sented. dictment. [5] At His October plea of not Session, guilty put in issue defendant was tried every essential element on the 1955 in Cooper, 381, 124 charged. 372, 256 N.C. S.E. the crime of prove beyond a reason was on the State to The burden 97. 91, person fact Jessie B. defendant, able doubt and all other essential indicted, elements of the person Lewis, the Logner, 550, 553, 63, 66; v. 269 N.C. 153 S.E. 2d charged. State crime 159 S.E. 2d 873. 273 N.C. Clyburn, v. State [6] Article I, Section 13, of the Constitution of North Carolina any convicted shall be of crime but “No provides: good jury persons and lawful open of a verdict unanimous however, provide may, other means Legislature of trial, court. appeal.” misdemeanors, with the A (Chap statute petty 4636(a) later codified Laws Public N. ter a 1935) permitted defendant, by pleading nolo C. Code felony jury a charge, to waive and be tried contendere unconstitutional as violative of I, was held judge, Article by the Camby, N.C. 182 S.E. 715. In the cited Section approval from the quotes Stacy, C.J., Hoke, Wells, N.C. 55 S.E. as fol (later C.J.), in State J. — Stewart, this Court S. v. 89 N.C. “Two decisions lows: Superior held that Holt, Court, 749—have 90 N.C. S. therein, juiy trials originating criminal action indictment by the accused.” Defendant was entitled as be waived could not every essential element of the crime jury charged, trial as to right to identity. as to his including judge excluding ruling proffered the trial Appeals. approved by the Court of In our view, *5 not warrant cited do conclusion. The the texts decisions below. are discussed cited decisions Drumbright, 496, ex rel. Fla. of State Cacciatore
Analysis following: A.L.R. discloses the Joe 721, 97 One Cac- 156 So. State v.
n ciatore“was upon a municipal Tampa, in docket tried court City charge attempted allege a violation of ineffectually which judge quash, Ordinance No. 455-A.” The overruled his motion to pronounced judgment. However, the guilty found the defendant in a corpus proceeding, habeas ordered the Court, Circuit custody discharged ground from on the accusation not of- tried, defendant was convicted and sentenced “did state an against City Tampa either fense or the of Florida.” charge municipal “Subsequently, another docket was entered sufficiently charge (d) . court which . . the defendant cer- with (did) tain acts which constitute violation said Ordinance 455-A.” The action under consideration was instituted Cacciatore in the prohibition. Alleging to obtain a writ of jeopaxdy, Circuit Court former prayed judge Municipal Tampa prohib- he that Court be proceeding prosecution. ited from second The Circuit Court affirming dismissed the action. When judgment, Florida, opinion “(I)n by Brown, J., said: corpus proceedings, general jurisdictions rule in most an is that judgment discharging proceedings order or such is con- clusive in favor he is held in illegally custody and is res judicata necessarily of all issues of law and fact involved in that re- sult, again cause; he cannot be arrested the same is, warrant, indictment, the same or which was information illegal.” (Our italics.) therein held Jur., The statement from 25 Am. Corpus 157, quoted opinion Habeas the Court of Appeals, essentially J., the same words used Brown, the Florida Brown, J., case. The continues: it usually “While termi- proceeding against pending nates the the petitioner, it does neces- sarily prevent subsequent the institution of a prosecution against proceedings legal him under which are and sufficient and which re- supply illegalities, defects, move the or on account of which the discharge granted.” order Moebus, Petition 74 N.H. A. (1907), referred to Appeals, and the Court of Petition Moebus, (1905), N.H. A. 170 relate following factual situa- Mark In one Shinbom was tried
tion:
and convicted
felony
of a
imprisonment
New
and sentenced
Hampshire
years.
for ten
prison
February
escaped
Committed
he
December
from the State.
fled
the prisoner, a resident of
arrested in that
York, State. He
brought
New
New
into
Hampshire upon
requisition
issued
its Governor. Although he
Henry Moebus,
he was
E.
not Mark Shinborn,
asserted
he refused to
litigate separately
identity.
issue
to his
He
impris-
asserted his
*6
THE
COURT
IN
SUPREME
v. Lewis
ground “he was
on the
unlawful
Hampshire
onment
New
was
(New
court within
hearing
competent
lawfully
entitled to
before
that, upon
and
de-
prison,”
Hampshire) prior
commitment to
to his
to be liberated.
(trial),
nial
was entitled
hearing
of such
he
for the
Speaking
Su-
original petition
was denied.
“Being
C.J.,
Hampshire, Parsons,
said:
preme
of New
felony
unlawfully
lawfully
could
large,
and
Shinborn
sentence for
person,
imprisonment,
private
to
even
be
and returned
arrested
foundation of
Holmes,
[6] Testimony proffered by defendant, which tended to show he Lewis, charged B. indictment, was not Jessie ruling should been admitted. competent and have proffered excluding testimony, this judge the decision of Appeals approving ruling, were the Court of erroneous. On this a new is entitled to trial. account, relating questions competency now portions turn We G. Womble. of Sheriff evidence, which defendant identified as State’s Jessie testimony of H. Reese Lewis, Bailey, B. consisted Fred L. Bailey, then county jailer, assistant Wood and G. 0. Womble. sheriff, Wood, deputy testified witnesses what occurred in then County January 28, on Bailey Jail on occasion the Nash escape Womble testified to the of Lewis was assaulted. Sheriff prisoners, County from Nash Jail Evans, Dock both of one 31, 1955; January to their arrest to their re- January County Nash Jail; and reconfinement to statements turn to after reconfinement; before and his return and made to him Lewis State v. Lewis jail af- presence statements made Evans of Lewis ter their return and reconfinement.
[7] Defendant assigned as error the admission, over his objections, by and testimony Sheriff Womble’s as to statements Lewis made as to statements by made Evans. testimony
Sheriff Womble’s After the arrest of tends to show: Lewis Lewis, and Evans on first January he talked with police at the reconfine- Rocky station at Mount and later after the ment of Lewis in County the Nash Jail. Lewis told him substance Bailey on that, January 28, prisoner, had while he struck piece the head iron, knocking down; with a him he had dragged Bailey bullpen into the door; that, locked the Bailey’s keys, through he unlocked an outer door which he and Evans, a escaped. After Lewis fellow-prisoner, made these state- (Sheriff Womble) ments, he talked with Evans and Lewis the County substantially Nash Jail. Evans then told him what Lewis previously had told him with reference happened to what Jan- uary 28, 1955. this after occasion, On Evans had made these state- ments, by him Lewis told the statements made Evans were correct. repeated Thereupon, Lewis the statements' had he made to the Sheriff’s conversation with both Lewis and Evans the Nash County Jail. testify at
Evans did not the at October Criminal Ses- Sheriff Womble he did not sion. testified know where Dock Evans — in years.” that time that he had “seen him The trial the absence of the judge, jury, conducted a voir dire findings made of fact examination and the set out below. to
With, testimony reference the Sheriff Womble’s portion re- by lating to him Lewis, judge to statements made the trial found as by a fact “that the statements made the sheriff the defendant were knowingly intelligently made, freely, voluntarily, any without hope reward or threat, inducement, reward to defendant, the rights he been advised his constitutional after had with reference against any might being statement he make used him.” portion testimony With reference Sheriff Womble’s re- by lating Evans, judge to statements made the trial found as a fact “that the about which the sheriff was asked, conversation which he presence with Dock defendant, had Evans was made type particu- such circumstances and was of the conversation, larly sheriff pres- the statement made Dock Evans as call defendant, ence of were such answer on the part COURT IN THE SUPREME
State v. Lewis between rules conversation defendant, and the court com- defendant is presence the sheriff and Dock Evans against defendant.” petent and admissible made statements testimony It is clear Sheriff Womble’s testimony statements made incompetent as to Evans unless Attorney competent. General. by Lewis was This conceded incriminating testimony as to Hence, we consider first whether competent. statements made support testimony heard on voir was sufficient to dire voluntarily judge findings of the trial to the effect Lewis of his con- statements him after had been advised attributed to he However, rights respects forth. stitutional set warnings given Lewis with reference to his constitutional shows the set rights requirements established and fell short of certain Arizona, ed. Ct. forth in Miranda v. 384 U.S. 16 L. 86 S. *8 1602, 13, 3d decided June 974, 10 A.L.R. 1966. in in with decision State v. Appeals, accord its
The Court ap- 2d did not App. 279, 492, 1 161 S.E. held Miranda Branch, N.C. 1955; judge, ply made to statements upon findings compliance as to full with the constitutional based Sheriff Womble’s applicable 1955, properly standards admitted testimony as Lewis’s statements. largely upon the stress jurisdictions, in other
Decisions based opinion Mr. phrases placed particular words Jersey, 719, 384 U.S. 16 Justice in Johnson v. New Chief Warren sharp 20, 1966, June are 882, 1772, L. 2d 86 S. Ct. decided ed. are Branch, supra, discussed prior conflict. decided to State v. Those there is J., Appeals. in his for the Since Brock, Court appropriate definitively to rule trial, to be a new deems as to admissibility as to at that whether, custody with Lewis while is to determined statements requirements of Miranda with reference to reference applicable January 31, 1955, on or about constitutional standards were made. when the statements con holding testimony in-custody that a defendant’s
Decisions
compliance
the absence of full
fession is not admissible
begun
1966,
after
when
in trials or retrials
June
Miranda
offered
(Nev.);
following: Guyette
P.
244
State,
v.
438
2d
United
include the
(2d Cir.);
F. 2d
v.
Vanterpool,
v.
394
697
Groshart
United
States
(9th Cir.);
State,
(Ala.);
Smith v.
210
2d 826
F. 2d 172
So.
States, 392
(8th Cir.);
States, 375 F. 2d
Creech
v. United
355
v. Com
Evans
(Ky.);
245
Amsler v.
monwealth,
States,
2d
United
381
412 S.W.
FALL TERM
447
1968
State v. Lewis
(9th
F.
Cir.);
2d 37
People Doherty,
Rptr. 857,
v.
59
429
2d
Cal.
P.
177; Dell
State,
v.
231
(Ind.);
N.E. 2d 522
McCarther,
State v.
197
Kan. 279,
(5th
416 P.
290;
2d
v. United States,
Gibson
Decisions
that a
in-custody
defendant’s
con-
fession made
begun
June
admissible
retrials
after June
where there
full compliance
with the con-
stitutional standards
when the confession was
in-
made,
following:
clude the
22
People v. Sayers,
N.Y. 2d 571, 240
2d
N.E.
540; Murphy v. State, 426
2d
S.W.
509 (Tenn.);
State,
Boone v.
3
App. 11,
787;
A.
Md.
State Branch,
supra;
Vigliano,
129;
50 N.J.
A. 2d
Jenkins
State,
(Del.);
Articles and comments since Johnson, in which the sub ject discussed, under consideration is following: Schaefer, include the “Sunbursts”; Techniques Prospective Control Overruling, (1967); Record of N.Y.C.B.A. Wash. and Lee L. Rev. 108 (1868); (1967); 19 S. C. L. Rev. 863 116 U. Pa. (1967); L. Rev. 316 (1966). Syracuse L. Rev. 117 relating general principles op- prospective
For to retroactive or overruling adopted by precedent, of new court in ref- eration rule (Annotations) is made to Comment Notes 14 L. ed. 2d erence *9 1371-1447, legal and in 992-1015 A.L.R. 3d and to decisions and 10 general periodicals principles cited therein. These are summarized in 14 2d at as the Comment Note L. ed. 994 follows: early decisions, courts established favor policy “In the retroactively treating overruling operating as as well all decisions recognized power modem decisions prospectively, but the have overruling operative prospec- that an decision is of a court to hold upon rights tively operative parties only and is even as a overruling generally it has been held that mat- to de- operation overruling of an law, ter constitutional retroactive Thus, whether required prohibited. nor cision is neither overruling will be adopted an case a new rule and to what extent retroactively compulsion, of constitutional is not a matter applied judicial attitude, depending on the circumstances of matter of but a 448 IN THE SUPREME COURT v. Lewis particu- purpose particular tbe the nature and situation and lar overruling decision involved. deemed among have been those which following
“The
factors are
opera-
partial denial of retroactive
complete
to
a court’s
or
warrant
the overruled
reliance on
oveiTuling
justifiable
tion
decision:
overruling
adopted in the
ability
the new rule
case;
to effectuate
likelihood that
effect; and the
giving it retroactive
case without
substantially
overruling decision will
operation
retroactive
(Our italics.)
justice.”
burden the administration of
given
retroac-
unlimited
discussion, decisions
pass, without
We
ed. 2d
Wainwright,
335,
372 U.S.
9 L.
operation, e.g., Gideon v.
tive
confine discussion to de-
2d 733. We
792,
Ct.
93 A.L.R.
799, 83 S.
op-
newly
overruling precedent, is to
adopted rule
holding the
cisions
retroactively.
prospectively and not
erate
618,
601,
L.
2d
85 S. Ct.
Walker,
14
ed.
Linkletter v.
381 U.S.
upon
Ohio,
Mapp
whether
v.
7, 1965, bears
1731, decided June
1081,
1684,
(1961),
1967, and discussed below. Since the constitutional referred occurring new during an incident related to Griffin prejudice free from such defect and without trial could be conducted adopted in rules prosecution However, or defense. new overruling occurring matters to trial decisions relate to other complied with constitutional fully where law enforcement officers subsequent prosecu- In applicable. instances, standards then these impaired rejected if the on seriously tion defeated or evidence not rules ground comply pro- the officers did new thereafter overruling mulgated in the decisions. upon Jersey, supra, prospective bears or ret-
Johnson New
Miranda,
superseded
and of
which
application
roactive
Escobedo
holding
admissibility of confession
decisions
evidence
earlier
was voluntary
on
basis of whether the confession
determinable
New Jersey Court, testimony
trial in a
At Johnson’s 1959
coerced.
in-custody incriminating
statements Johnson had
admitted
conviction
final
in 1958. Johnson’s
became
1960. After
judgment
collaterally
post-con-
attacked
Miranda, Johnson
ground his 1958
on the
confessions had
proceedings
been ob-
viction
with the
complying
constitutional standards first an-
tained without
asserted
a new
in Miranda. Johnson’s
trial was re-
nounced
ground Miranda was to be
jected
applied prospectively
retroactively.
passing
addition to
question directly
“(T)o
of Chief Justice Warren
upset
states:
presented,
pending on direct appeal
still
all
convictions
were ob-
preceding Escobedo
Miranda would impose
in trials
tained
justice.
the administration
At
burden
unjustifiable
the same
*11
450
IN THE SUPREME COURT
'[274
;
v.
time,
any
we
and
persuasive
do not find
reason to extend Escobedo
Miranda
even
announced,
to cases tried before
decisions were
those
though
may
appeal.” Thus,
Johnson,
the cases
still be on direct
Court,
overruling decision,
its
held
established therein
the rule
applied
appeal.
would not be
then
direct
already
cases
tried and
v. Denno,
Stovall
388
L. ed. 2d
Consideration spoken definitively has not of the United States Pending under such consideration. such precise question now on the guided jurisdiction will be our de- in this decision, trial courts herein. cision Stovall states: “The determining judicial policy, (a) question implicate purpose guiding resolution of the
criteria (b) standards, the extent the reliance by the new be served (c) standards, the old authorities on by law enforcement State v. Lewis application retroaoctive justice on the administration effect (Our law enforcement italics.) Obviously, the new standards.” of officers relied on the the time at standards constitutional confession, and search time of the seizure, and at the commenced retrial is lineup. the time of the The date the trial or *12 the evi- obtained unrelated to whether the law enforcement officers reason- they which according dence to constitutional standards Supreme Schaefer, of ably placed reliance. As stated Justice Techniques Pros- of in The “Sunbursts”: Illinois, Court Control stand- pective Overruling, op. cit. at 411: “The earlier constitutional commenced, upon, relied not at the moment that the ards were interrogation place.” that the took but at the moment sions obtained [7] In our view, Miranda should to that decision, not and does not when offered at apply trials or retrials to confes upon and where law enforcement officers relied beginning thereafter, standards the time the complied with constitutional perceive a trend towards this conclusion were made. We confessions of the United discussed in Court States decisions herein. with the decision of phase we are accord
On this Appeals. Jackson, The statement State v. 270 N.C. present inconsistent with the 773, 774, S.E. is in accord with present decision the statement
is withdrawn. 163 S.E. Fox, v. 274 N.C. State statements Evans
Admissibility testimony made light legal principles be considered incriminated Lewis is to hereafter set forth.
[8] “If a statement is made in a party’s presence such cir naturally properly expected would be cumstances that a denial deny untrue, his silence or failure to is admis if the statement were implied Stansbury, North against him as an admission.” Car sible calling circumstances Edition, 179. As to Evidence, Second olina 134 S.E. 2d Guffey, 261 N.C. denial, such see State 431, 137 S.E. 2d State cited; Moore, 262 N.C. cases Although quoted finding 2d 777. Virgil, N.C. 138 S.E. incorporates to Evans cer relating statements attributed fact rule, used the statement of this the rule language ordinarily tain for the situation under consideration apply the factual does not not remain silent. according Womble, did to Sheriff Lewis, reason incriminating statements attributed to Evans were Assuming assented verbally and that Lewis thereto presence in Lewis’s made IN THE COURT SUPREME but as to the statements statement, testimony made no further significance explain made by competent solely Evans would is differ- Lewis's assent. The situation under consideration factual According ent. before and after Womble, Lewis, Sheriff both statements attributed in detail to Sheriff made, to Evans were stated all to Evans Womble facts included in the statements attributed being true, necessity which tended to incriminate Lewis. This existed for the admission of the statements attributed to Evans explain significance order to thereto. Absent a Lewis’s assent creating exception against thereto, sound reason for the rule hear- incompetent say testimony evidence renders as to the unsworn declarations of Evans. grounds, a new trial is on other we need not
Since awarded de- cide whether the erroneous admission of as to state- ments prejudicial Evans would constitute error of such im- port require as to the award of a new trial. Whether an error is to or harmless prejudicial be considered must be determined the con- say, text of the entire record. Suffice to at the next if circum- *13 substantially by stances are the same as those present disclosed by will be avoided the exclusion record, testimony error of the as to made Evans. statements assigned appeal on defendant’s
Although properly as error not brought brief, forward defendant’s Appeals of nor to the Court subject discussed be- to call attention to the appropriate we deem it low.
[9] The indictment on which defendant was tried is based in a secret man any person “If shall 14-31, provides: on G.S. with battery any deadly assault and maliciously commit an ner waylaying otherwise, with intent to kill another or weapon' upon notwithstanding may so assaulted have person, such other adversary, guilty of his he shall of presence of the been conscious 14-31 is often referred felony .” The described G.S. felony. . . battery deadly weapon. and with a assault to as malicious secret imprisonment twenty years. therefor is punishment maximum “Any person assaults another with a provides: 14-32 who G.S. injury inflicts serious not re- kill, with intent to deadly weapon felony. guilty felony of a . . .” The de- sulting death, shall be is often referred to as felonious assault. The 14-32 scribed G.S. imprisonment years. therefor is for ten punishment maximum they might possible instructed return one four jurors were (2) Guilty charged; guilty or assault (1) an with verdicts: inflicting kill, bodily injury with intent serious deadly weapon State v. resulting in death; (3) deadly
not
or
guilty
assault
weapon;
(4)
guilty. Although
ample
there was
evidence to
effect Bailey,
the victim
assault,
injured,
seriously
1955 indictment
allegation
Consequently,
contains no
to this effect.
since the
charge
indictment does not
all essentials
the crime of
felonious assault as defined in
14-32, a
G.S.
verdict that defendant
guilty
of such felonious
could not
assault
be sustained.
this
connection, see
v. Rorie,
579,
N.C.
233,
S.E.
Overman,
State v.
464,
Error and remanded. concurring part dissenting J., part: LAKE, concur, I in the decision that to a new the defendant is entitled I opinion trial. also concur in all of majority except portion dealing of it applicability with the case of the decision Arizona, Court of the United States in Miranda v. 384 U.S. 16 L. Ed. 2d admissibility S. Ct. and with the testimony Sheriff Womble as made to him statements by the defendant and Evans. apply and, does case my
It is view rule to this Miranda the statements testimony Womble as to consequently, the of Sheriff incompetent. majority- to him As the points compels out, this the conclusion that the *14 by presence sheriff as to statements made to him Evans the If incompetent. express the also the defendant’s of defendant was rule, of the incompetent by reason Miranda the con- admission temporaneous by competent not be as an im- statement Evans could having by admission the defendant. The defendant the consti- plied by throughout interrogation silent the tutional to remain by sheriff, deny to the statement Evans could not failure be admission that the Evans implied an statement true. deemed Fuller, N.C. 155 S.E. though is majority opinion that, to the effect com- trial be after the Miranda the admissibility menced in evidence at by trial of statement the course of such IN THE SUPREME COURT interrogation custodial if the by rule, is not affected the Miranda was made this statement before the date of that decision. With I am I agree. to that unable believe for trial courts to follow this course will result of proper. reversals convictions otherwise Harlan, Like Stewart, Justices and Clark, White who dissented from the Miranda decision, I rule believe the established that misinterpretation case is of a unsound the result of the Four- to teenth Amendment the Constitution of the United Conse- States. quently, I have no to see the enlarged, desire effect of that decision content either of the rule or as to the time of its effective- ness. of the Miranda are, The merits decision however, not before us. my dissenting opinion Hospital, in Rabon
As stated my judicial power that the does S.E. it view N.C. law making of new rule of not extend to portions reason am unable to concur those of future. For that I this imply may which seem to that majority Court law legislative fully very this which is the essence of the power, exercise is, opinion, I, us power my denied Art. power. That § ques of that II, Carolina, of the Constitution North but Art. any implications us in case and such before this tion not are, most, at the dicta. majority opinion my Supreme it is view that Court reason, for like While, authority has lawful United States no the Constitution of give interpretation an of that document by the United States only, that is not operation question before us. The prospective that United States has ruled it does have Supreme Court question binding upon and its determination authority, itself, interpretation of the us, being, Constitution of the United States. United has that au- Supreme of the States
Assuming the Court not for it is this purposes of thority, must for the as we Supreme of the a decision Court whether to determine Court retroactive, not if it be or, be or should should United States when its effectiveness commences. retroactive, to determine fully Supreme by the determined Court question That is a tribunal. Unless the other Court United States interpretations declares, its otherwise the United States are applicable, retroactive and are the United States Constitution occurring regard thereafter, to all trials without so, otherwise where giving question rise to arose. When Su- facts when the declared, has otherwise its the United States decla- preme when interpretation as to its is conclusive ration *15 State v. Lewis Constitution of the United effect and conclusive States takes as to which under the new trials are to be conducted rule announced it and which are to be conducted under former rule. spoken Court of the in John- United States has so
son v. New Jersey, 384 U.S. 16 L. Ed. 2d 86 S. Ct.
with reference to the effective date of its Miranda decision. Conse- quently, the discussion the majority opinion, present case, principles governing as to a decision, determination of when changes law, should be declared just retroactive and how retro- ’ active it be, pertinent should is not to the case now before us. agree Whether we Jersey not, Johnson v. New or it is the au- thoritative answer to the question of when the Miranda took rule effect and determines which (time-wise) confessions are admissible and which not. only question are is, us What did the John- say son case about this and what did the mean by what it said?
This is what the Court said Johnson v. Jersey: New
“In this case we are called to determine whether Escobedo * * * * * * v. Illinois and Miranda v. Arizona should be ** * retroactively. applied We hold applies that Miranda only began to cases which the trial after the date of our de- * * * ago. cision one week “ * * * application of seriously etroactive Miranda would [R] - disrupt of our criminal the administration laws. It would re- quire prisoners retrial or release numerous found guilty by conformity trustworthy evidence with previously announced * * * constitutional standards. light “In the of these various considerations, we conclude that * * * applied Escobedo and Miranda should not be retro- question remains actively. The whether Escobedo and Miranda appeal affect cases still on direct when they shall were decided application shall begun whether their commence with trials * * the decisions were announced. after making reasons set forth “All of the above for Escobedo and suggest ap- nonretroactive these decisions Miranda should begun after the decisions ply only to trials were announced. fully will benefit from our Future defendants new standards in-custody interrogation, past may governing while defendants * * still avail themselves of the voluntariness test. *. -Pros- begun application to trials after the pective standards were *16 IN THE SUPREME COURT * * * cir- here. In these particularly applicable announced pending still on di- upset all the convictions cumstances, * * * preceding appeal obtained in trials rect which were adminis- unjustifiable an burden impose Miranda would * * * justice. tration of considerations, light of we conclude “In the these additional ** * only to commenced apply should cases that Miranda * * * were announced. after those decisions concerning im- disagreements among the other courts "The lay plications Escobedo, however, impelled have us to down presented guidelines not additional situations case. are Miranda, guidelines there- This we have done and these begun persons had not available whose trials fore throughout.) IS, (Emphasis added June 1966.” a thing, that it certain says opinion When a court in its “holds” given therefor, determines what and not the reasons statement, escape conclusion that I am unable to case decides. applies rule to the introduc- case decides that Miranda Johnson begins which trial after the Miranda any trial, tion of a confession irrespective of when confession decided, case was 13 June Consequently, I cannot concur this statement in the was obtained. case: opinion present majority apply and does not to confes- view, Miranda should
“In our prior decision, to that when offered at trials or obtained sions thereafter, where law beginning enforcement officers re- retrials with constitutional standards complied lied were made.” the confessions at the time interrogation just prior an arrest and to the Mi- suppose us Let interrogating prisoner officer did not inform The randa decision. appointed, being indigent. he counsel his to have interrogation proper. response otherwise confessed prisoner just recaptured. trial before and has been escaped thereafter prisoner the confession is offered in evidence brought trial is now He objection. any there be doubt as to what Can admitted over hold, assuming United States would it of the In in the Miranda Johnson cases? to its decisions adheres support can find no for the view that I Johnson language depends obtained, on when was admissibility confession was used at which it commenced. when the trial rather than of whether a new for consideration remains There trial, in a former errors indeed new trial because trial, ordered Thorpe gets or mere old Is the new continuation tbe one. long announcement way after the of the Miranda merely “begun” because before that decision was handed down case started an indictment returned to that decision and an my abortive trial was then the answer had? obviously, old, respect “No.” The is a in this nullity, erroneous trial at least.
Though the decisions of courts not alter the rule of other could to I the Johnson case as the effective date of the Miranda strengthened my according am view the fact that, ma- jority opinion majority in this a substantial of the decisions jurisdictions from reach the same other conclusion. joins opinion. J.,
Higgins, STATE OF NORTH CAROLINA THORPE LEROY
No. 247 (Filed 1968) 20 November — right 32— in-custody Constitutional Law to counsel §
1. interro- gation Indigent request during in-custody ques- defendant’s failure counsel tioning following regarded right bis arrest cannot be waiver legal representation (1) where the defendant awas retarded and unedu- 20-year-old youth completing who had cated grade, cluding one, left school before the third (2) officers, although advising rights, defendant of his in- they lawyer a statement would hire a if he could not afford explain during to' failed defendant that he was entitled to counsel interrogation. — admissibility Law presumptions 2. Criminal 76— confessions § determining admissibility aof confession the courts are no longer permitted rely presumption confession is deemed voluntary contrary until and unless the to be is shown. — 32— indigent Constitutional Law § counsel representation Not is accused entitled to' but under in-custody certain circumstances he is entitled to interroga- counsel at his counsel, indigent, without if accused is tion: pro- counsel must be intelligently by the authorities vided waived. — competency Law 75— in-custody 4. Criminal confession inter- rogation— of counsel waiver indigent did not advise Where officers uneducated and retarded defend-