*1 TERM'.;1968 FALL w. Viоkees HORTON VICKERS STATE OF v. JOHN NORTH CAROLINA No. 739 (Filed 1968) 9 October applicability Criminal of Miranda v. Arizona Law 74—§ begun applicable Arizona, a trial is not Miranda v. 384 TJ.S. prior to 13 June 1966. while under arrest Law admissions
a. Criminal 75—§ incompetent solely police be- Admissions to officers not rendered' are they made. cause was under arrest when defendant were extra-judicial admissibility confession 3. Criminal Law 75—§ only extra-judicial defendant when An admissible confession is understanding^ was, fact, voluntarily made. objection general of confes- to admission 4. Criminal Law 76— §§ sion challenge admissibility general objection of a con- A is sufficient fession. — 5. Criminal Law 76— neces- to admission sity for voir dire as to voluntariness When the trial and State offers an admission or confession in a criminal interposes general specific objection, -or must determine admission voluntariness preliminary inquiry jury, and his failure do so absence ' - prejudicial requiring constitutes trial. error a new Parker, dissenting. J..
Appeal February 1965 Crim- Johnson, J., defendant from inal Session of Dueham. with charging him
Defendant was tried a bill of indictment the crime of robbery. armed Durham, an em- testimony Murphy State offered Jerome
ployee of Tar testified substance' Company, Heel who Cab o’clock, de- approximately 2:00 September follows: On stating that he wanted operated Durham, fendant entered cab go including Carrboro, defendant stops, to Carrboro. After several him to defendant’s home. Af- told the witness that he would direct they pulled Highway ter had driven some miles on point below the seat and held the somewhere, butcher knife from Dеfend- right in cash from him. Durham’s side and took some $15.00 Chapel him old Hill drive back to the Road. ant then directed stopped Durham cab station, a service they were near When Durham called the the cab and left. Sheriff’s ran. Defendant took cab in a ditch near the Veterans Admin- he later saw the office, City custody of Durham. Defendant was in Hospital istration IN THE SUPREME COURT *2 that defend- at that The further stated Sheriff time. witness microphone times defend- ant cut the wires to cab and that “At his appeared mind not.” right ant to be his and at others he did Ray, police City Durham, pertinent
W. a W. officer for in Dur- part, That saw'defendant on Erwin Road testified: he first saw driven defendant ham him until he the cab and followed was by Deputy strike automobile Hall. Defendant driven Sheriff custody placed taken in in the rear оf Sheriff Hall’s car. placed Hall that defendant had been Sheriff L. Y. testified after County Thereafter, took to Durham Jail. custody, he defendant following according record, to the occurred: “Q. you day? What, anything, did he tell the next —that thing just The same Mr. Watson told A. No. OVERRULED EXCEPTION
OBJECTION drinking all the that he weekend, he had beer A. That been need job Monday morning and his boss did not went to the — him that with and he went him and two other fellows was something and after 7:30 he started he had seven dollars and got he cab drinking had drank until into the beer he beer bought picked'up six of beer and cans day, that he cutting the mike but he did in a store and he remembered knife (sic) and robbing Mr. he threw the Vickers, not remember he not know where.” away but did knife Watson, County, Durham also testified Deputy L. R. Sheriff testimony as to defendant. His over the statemеnt as concerning was, essence, statement the same of Sheriff this Hall. tending that he had been in offered evidence to show
Defendant prior Septem- to 21 hospitals mental occasions and that several times he appeared “was at times sane other ber 1964 he insane.” following exhibits into also offered the evidence: Ex-
Defendant copy obtained from the Clerk photostatic of Court’s hibit No. Admission for Mental Illness or In- of an “Affidavit to Procure office Discharge of John No. a “General Horton Vick- ebracy,” Exhibit Navy August 23, dated 1957,” States Exhibit from the United ers in case No. 9180.” “Judgment and Order The record shows 5, No. of the offered or authentication exhibits. The court certification objections to each of these exhibits. State’s sustained the testimony оf Dr. Sykes, in rebuttal offered Walter The FALL TERM 1963".' qualified expert Sykes Dr. testified: psychiatry. the field “That he and eval- had exámined the défendant and-that' the examination days. period opinion uation .covered a That in his the defendant competent charges stand understand the personality him. That was a but was not psychopathic insane.” guilty charged. judgment
The returned a From verdict imposed, appealed. appeal was withdrawn April April Criminal Session Durham. On 30 petition allowed defendant’s certiorari to end he might perfect appeal. his
Attorney Deputy Bruton and Attorney General General Bullock the State. Michaux, Jr., H. M. for defendant.
BRANCH, J. police' Defendant’s statements to officers while in custody inculpatory they placed were since him at the scene of the crime State’s; placed possession weapon his described chief having witness as been used perpetration robbery. Upon objection the defendant’s introduction of the. the state- judge simply the trial ments, overruled the and did not a voir hold dire determine the voluntariness of defend- ant’s statements.
[1,
case of
Arizona,
The
Miranda v.
384
U.S.
applic
2]
begun
able
the instant case
trial of
since
this case had
prior to 13
Jersey,
June 1966.
v. New
384
Johnson
U.S. 719. Further, the other
surrounding
wise silent record
circumstances under which
only
reveal
defendant made
admissions
that defendant made the
admissions or confession while
was in custody
being ques
he
and.
The
police
police
tioned'
officers.
admissions to
officers,
any,
incompetent
rendered
solely
wоuld
be
because defendant was
they were made.
under arrest when
State
Litteral,
understandingly
been
and approved in
State
jurisdiction.
Roberts,
State v. Rogers, N.C.,
State
N.C. 390,
Moore,
64 S.E.
686,
' n (cid:127) (cid:127) ®. Vickebs as to the confession so sufficiently challenged .admissibility of ' admissibility. its to' determine require preliminary inquiry following find the state Rogers, supra, we the case of State v. ment: challenged on the admissibility of
“When the means, ground improper that it induced was it was or of fact whether required the' to determine (Em- go jury.” it permits he before was not ’ ours) phasis might be in- quoted statement above portion of the The italicized objection stating particular require specific terpreted to (cid:127) objection. grounds for p. 640, the follow- Evidence 2d, also find in 29 Am. Jur. We ing: it is to the effect authority is some “While there objection by the- de- in the absence duty court, admissibility of inquiry .con- into
fendant, to conduct in a a defendant crim- generally held that more fession, it is evidence of con- the introduction objects to inal case who should by him, involuntary; fession showing incompetency timely offer of evidence make a (cid:127) request .preliminary investigar that-a confession, or should which offer- or made, tion .matter be should court rules on the evidence offered. Where no *4 made before objection a timely to the voluntariness of confes- proper and for an examinаtion as to or no is made its made, is sion preliminary examination or is voluntariness, re- respect question, to such and the defendant 'can- with quired the raise the -issue that erred in fail- appeal, not, upon a preliminary such examination.” ing to conduct Perry, 1074, held in v. 51 La. Ann. Court Louisiana properly objection was overruled where de that the 944, So. 25 alleged to inculpatory statements have been objected fendant ground proper bqen: foundation not him, by .had- wherein lay upon to state the defect in he declined when laid the court. by quiry general interposition objection of á sufficient rule that A by a confession was adppted Mississippi challenge admission State, 235, Miss. So. However, 163 140 Ala Jackson 107) (Bates 68, State, 104 Ala. 16 So. and Florida (Bradford bama 373) adоpt 672, specific So. the.view that a 84 ob- Fla. State, 78 315 FALL TEEM 1968
State v. call jection objection as to is so stated necessary matter. trial court’s attention to the American Juris- do from quoted
We not think rule above prudence Mississippi Louisiana adopted nor the rule Rogers, supra, is sustained Courts, possibly State v. alluded jurisdiction. authority in this reasoning weight the better This Court, speaking through J., Barnes, in State 264 Higgins, N.C. 142 S.E. said: a confession offered evi- “When challenged dence objection, court, absence jury, should determine whether the was free and volun- tary.” (Emphasis ours) language approved has been cases Gray, of State v. Ross, N.C. State v. S.E. 2d 469; Bishop, 153 S.E. State v. S.E. 2d 511.
Here, general objection defendant’s made it clear that he chal- lenged .the admission of the confession because of its involuntary character. This always jealously protected Court has defendants’ rights as to and confessions, admissions and it will not in this in- rights stance allow such impaired by requires rule n specific objection general when objection clearly calls the matter challenge to the trial court’s so involuntary attention na- ture the confession gen- or admission. We hold that defendant’s objection challenge eral was sufficient to the admission of prof- fered confession.
[5] Since we hold that defendant’s was sufficient to challenge alleged the voluntariness of the confession, it becomes necessary concerning that we examine recent decisions admission of challenged confessions when defendant. (cid:127) In the cаse of State v. Painter, 2d 6, de- charged fendant was issuing with forgery forged instrument. part
The evidence in revealed that defendant asked talk with an agent. F-.B. I. He was taken to a conference room and there was right told of his to representation by an right attorney, to remain silent, anything might he said be used him. He thereupon made statement which was offered into evidence. When offered, defendant’s objected counsel statement procured confession was under coercion and under *5 rights his such circumstances that constitutional were violated. De- no request fendant made voir hearing, dire nor did he be testimony that he allowed to offer as to the voluntariness of his judge finding The made no confession. of fact' concerning the com- confession, mеrely but petency of the overruled objec- defendant’s IN THE SUPREME COURT
State from it the quoted Litteral, supra, The tion. Court cited State following: a voir dire re- for a practice
“While is the better finding the as to vol- his specting confession to make a failure so do record, in thereof and enter it the untariness admissibility, this is test of is not fatal. Voluntariness the ruling was evidence com- judge to decide. His that the is for the conclusion that the con- necessity petent was bottomed voluntary.” fession was confession was a 'conclusion the stated that “Such
The Court further case, in and there is the the voluntary’ supported by all evidence is contrary conclusion upon which a could nothing in record this based.” Painter de- v. Litteral differs from of State
The case nature of a confession signed a Litteral statement fendant against him objection, into without evidence which was admitted Bell, statement offered a written when juiy retire conducted a motion, own had court, its from instant case there is hearing. differs voir dire Painter attendant to the confession in circumstances plenary evidence virtually is in instant case silent record con- while the Painter or surrounding the admissions confession. cerning circumstances Stubbs, In the case of State 145 S.E. 2d allowing trial court committed error in defendant contended testify to statements made the defendant in witnesses to the ab- voluntarily showing statements that such were made. sence of The were admitted without statements holding was merit in Court, that there at the trial. con- a.general presumed a confession “As rule tention, stated: to be the burden is on the accused show the voluntary, contrary. Hamer, Grass, N.C. 81 S.E. State v. Richardson, State v. S.E. 2d 852.” 25 S.E. Jur., quoted from 20 Am. Evidence, 536, p. 456, then as “ jurisdictions majority confession ‘In is pre- follows: regarded prima facie, be, and, hence, sumed defendant, should be admitted in objected something unless there court, in- by inadmissibility.’ .” This is factually distinguish- case its dicates case in that Stubbs the instant evidence as to from able objection. admitted was' without Painter, supra, of State v. holds case that ob- While hearing a voir dire to conduct failure absence of jection *6 FALL TERM 1968 317: v. Vickers State
jury as to the voluntariness of the defendant’s confession is not fatal
error,
recognizes
it
holding
such
is the
better
practice.
long
Further,
jurisdiction
line of recent cases in this
state
practicе
requires
judge, upon
better
objection,
excuse
jury
and in
jury
the absence of the
hear the evidence of
both the
upon
State
of whether de
fendant, if
voluntarily
he made
admission
confession,
or
and un
admission
derstandingly
Greenlee,
or confession. State v.
22;
supra;
Ross,
272 N.C.
State
Bishop,
S.E.
v.
State v.
supra;
Barber,
State v.
Gray,
268 N.C.
151 S.E. 2d
State v.
supra;
Barnes, supra;
v.
Outing,
State
State v.
State
Davis,
The
approved
places
in this line of decisions
North
Wigmore
in the
or
category
rule,
Carolina
“orthodox”
which
approved by
Supreme
has been
the United States
Court in Jackson
In
Denno,
essence,
holding
Ervin, the Court in the case v. Hamer, State supra, stated: accept as valid the definition Dean Wigmore, “We
great evidence, master of the law of that 'a confession is an ac- knowledgment express words, the accused in a criminal guilty charged the truth of or case, of fact of some essential (3rd part Wigmore 1940) it.’ Ed., Evidence Section 821.” condemning weight conclusive or admissions confes- necessary carefully guard the courts sions makes defend- rights when admissions a confession are ant’s offered into evi- dence. Barber, supra, Bobbitt, speaking case of State v. J., legal principles pertinent clearly stated to decision of in- Court, case,
stant as: COURT IN THE SUPREME in' a criminal trial offers a confession “1. the State ‘When *7 voluntary, not objects it
and the defendant judge prelim in a by the is determined the thus raised judge The trial jury . in absence the inary inquiry the of witnesses and of the evidence, the observes the demeanor hears 468, 472, 121 Outing, N.C. question.’ v. 255 resolves the State L. Ed. 2d 82 S. den., 807, 7 847, 849; 2d cert. 369 U.S. S.E. 344; 2d 264 N.C. 142 S.E. Barnes, v. Ct. 652. Accord: S. S.E. Gray, State v. 150 by background which a factual ‘In the of “2. establishment admissibility, test of a confession meets the whether determine course, findings fact. ... Of of must make the the trial court facts found are be drawn from the law to the conclusions of by Barnes, supra, opinion reviewing courts.’ S. v. binding on the in the decision S. v. legal principle underlies Higgins, J. 148 2d 569. S.E. Conyers, 267 N.C. only findings purpose, are for one of fact made These
“3.
as
judge’s decision
to the ad-
basis for the
namely,
show the
consid-
testimony. They are
for
proffered
missibility of the
in
be
referred
They should not made or
by
jury.
the
eration
2d 833.
Walker,
S.E.
S. v.
jury’s presence.
the
proffered testimony is ad-
judge
“4.
‘If the
determines the
of
objection
the
to the admission
missible,
jury
recalled,
the
testimony
testimony
overruled,
is rеceived
evi-
the
the
by
jury.
evidence,
If admitted
it
for
the
dence
consideration
whether
statements
jury
to determine
the
referred
is for
by
testimony
witness
in fact made
the defend-
of the
were
given
any,
to be
such statements if made.
weight,
ant and the
under which the
as
the circumstances
state-
Hence,
may
be
to defendant were
offered or
attributed
ments
presence
jury.
of
elicited
cross-examination
Ad-
missibility
by
judge
is for determination
unassisted
weight
Credibility
jury
are
determination
jury.
judge.’
Walker, supra.”
S. v.
unassisted
years
recognized
one hundred
this Court has
For more than
duty
to decide
facts
depends
of the
is the
“it
testimony;
put upon
he cannot
admissibility
others the de-
of law or
matter,
fact,
whether
which he himself is
cision
Andrew,
requirement
make.” State
note other [5] We hold that hereafter when the State offers a confession in objects, criminal trial shall de of the admissions voluntariness or confession pre termine the jury. inquiry in the absence liminary necessary not deem it
We do to consider defendant’s assign- other ments of error. new
There must be a trial consistent with holdings herein.
New trial. dissenting:
PARKER,C.J., law that a It is now hornbook in a defendant criminal action is if deprived process due of law his founded, conviction is in whole involuntary part, confession, regard or without for the falsity of confession. S. Crawford, truth 260 Davis, S. v. 253 N.C. S.E. 2d Roberts, S. v. Denno, Jackson 378 U.S. L. Ed. 2d 908; 1 1205; Rogers Richmond, U.S. A.L.R. 5 L. Ed. 2d majority opinion: in appears Hall L. Y. testified that “Sheriff after had been custody, he took defendant placed County Durham Jail. according record, to the Thereafter, the following occurred: IN THE SUPREME COURT Vickeks day? next you did he
“Q. What, anything, tell — just that thing Watson told The same Mr. A. EXCEPTION No. OBJECTION OVERRULED weekend, that all drinking beer A. That he had been need morning boss did not job and his Monday he went to the —went with him and he he that was him and two other fellows after he started drink- something 7:30 had seven dollars got until he into the cab had beer ing beer and he drank picked up a knife bought six cans of beer and he day, and that cutting he the mike but did he remembered in a store and (sic) robbing and he threw the knife Vickers, Mr. remember know where.” away he did not but only a general made noted that defendant particularly It is to object to he did not question, and that objection to the they were involuntary, by him the statements made tending an offer of evidence to show the time make any did not alleged confession, and did not incompetency matter be before the court investigation of the preliminary, is familiar law that a It defendant has offered. ruled on the stage object right proceedings a constitutional at some and to- have a fair reliable de- the use of voluntariness, a uninflu- of the issue of determination termination Denno, falsity truth or of the confession. Jackson enced weight According authority, to the will be set forth supra. may right be waived. detail, below *9 a represented by lawyer choice, of his own Alfred was Defendant lawyer Durham experienced County an and Bar. able Bryant, in behalf. In testimony his own the record offered be- The defendant suggestion alleged a or intimation that his there is not con- fore us voluntary. free and Defendant’s evidence tends was not to fession incompetent mentally by reason of the fact he was show that in mental patient several institutions and had been a had been he hospitals upon three occasions for mentally the in- in State confined guilty by insanity was not reason of that he competent, or both. disease, mental 390, Rogers, 572, in S. v. 64 S.E. 2d said 28
This is jurisdiction leading in this by case written 1104, 2d Justice A.L.R. the States is member of United Senate: now . . who Ervin, challenged is admissibility ground the When confession means, improрer judge the required was induced that it of fact whether it was or was not the determine FALL TERM 1968 Vickebs permits go before he jury. to the [Citing making In authority.] this preliminary inquiry, the should afford both prosecu- the opportunity present tion the defense a reasonable evidence in circumstances jury showing the absence of the the under which the mine.) confession was made.” (Emphasis
It is in Barnes, true that S. v. N.C. S.E. the in Court said: “When confession offered challenged evidence and objection, court, jury, the absence of the should determine voluntary.” whether the confession was free However, the Court opinion authority cites as for the statement, Rogers, S. v. supra, says, quoted which as we have above, “When the admissibility challenged that it toas induced improper .” means. The Barnеs case also cites Elam, S. v. has 139 S.E. no reference as to proper challenging alleged an
procedure admissibility of confession. preliminary inquiry was a length case there made respect absence jury’s admissibility of the al- leged confession. Smith,
S. v. prosecution was a upon charging an indictment the defendant with the commission of the felony capital rape. When the State offered evidence of statements by defendant, objected made defendant permission asked regarding witness cross-examine the the voluntariness of his state- cross-examination, After considerable ments. some defendant re- to find quested regarding alleged the court the facts any regarding same incompetent. hold that was entry present that under the Thе court made evidence the state- voluntary. opinion was in its ment of defendant said: right here had “The defendant contends that he to tes- witnesses in absence of the tify and offer rebuttal under concerning circumstances which the confes- from him. is true he asserts or re- procured sion was right However, time. when his counsel had at the quests the in respect of the witness to the his cross-examination completed which the confession did not circumstances under he rebuttal, but elected to the court any tender witnesses duty It was not of the court to to find the facts. time at that com- upon It ruled to offer evidence. call *10 to do so the de- testimony when called petency complaint.” for no cause gives the defendant This fendant. 847, cites 468, 121 S.E. 2d the Court Outing, 255 N.C.
In S. v. THE COURT 322 IN SUPREME [274 v. Rogers, supra, which from v. quotes S. Davis, supra, which S. v. appears above. quotation 509, J., speak 51, Bobbitt, 151 S.E. 2d Barber,
In S. v. 268 ing Court, for the said: “ trial and in a criminal a confession offers ‘When the State voluntary, not ground it was on objects preliminary in a judge is determined thus raised question judge hears jury. . The trial absence inquiry of and resolves the demeanor the witnesses evidence, observes 472, 468, 121 italics.) Outing, v. 255 N.C. (Our S. question.’ 555, 82 807, 7 L. Ed. 2d den. 369 U.S. S. 847, cert. 849, 2d S.E. 142 2d Barnes, 264 N.C. S. S. v. Accord: 652. Ct. 2d 1.” 69, 150 S.E. Gray, 268 N.C. it is 43 S.E. 2d said: Litteral,
In S. on a voir practice the better dire “While it is finding to make his as to the confession respecting record, a failure so enter it voluntariness thereof admissibility, and is the test of is not do fatal. Voluntariness ruling that the evidence was com- judge to decide. His is for the necessity on conclusion the was bottomed confes- petent Hawkins, supra voluntary. S. v. 199 sion was S.E. 284].” Supreme
A similar result was arrived Court Ver- 132 Goyet, A. 2d 623. that case mont Vt. grand for murder in the first defendant was indicted de- guilty by of in- gree. guilty, not reason pleaded Defendant degree. guilty was of murder the first sanity. The verdict After entry judgment verdict, the case verdict and before was exceptions Supreme of Vermont on passed to the defendant. the admission in concerned with evidence of Exception was de- opinion confession. In its the Court said: fendant’s written in connection with the of a con- “The basic test admission voluntarily given? there is; any Is fession —Was promises or course of conduct that threats, tends to show that was act? State Watson, 550, A. C.J.S. Criminal Law 817. Vt. preliminary one for determination of the Unless it can be said as of law court. matter that the deсision wrong, it must stand. State v. Blair, 81, 85, Vt. 99 A. admitting The court, by the after evi- dence of the attending circumstances giving of it, impliedly *11 FALL 1968' TERM
State Yickees given. voluntarily Blair, supra, that was 118 Vt. held page at page 89, A. 2d 682.” opinion In the conclusion oí its the Court said: respondent error nothing by
“There no and the takes exceptions. Judgment having his on the verdict not been entered degree in below, judgment guilty oí murder the first ren- of jury. and entered here the verdict of dered Let sentence pass and execution thereof be done.” in
This stated 29 Ain. Jur. Evidence 583: authority “While there is some to the effect that it is the court, objections of trial of duty absence de- inquiry an fendant, admissibility to conduct into the of a con- fession, a generally it is more held that in a criminal objects in who to the introduction evidence case by him, involuntary, it was should make a timely showing offer of evidence the incompetency of the con- fession, request preliminary investigation or should that a matter made, request offer or should be made before the court rules on the evidence offered. Where proper no timely objection voluntariness is made, or request no is made for an examination toas its voluntariness, or preliminary required examination with respect question, to such the defendant cannot, upon an appeal, the court in failing raise the issue that erred to conduct such a examination.” preliminary is said in annotation seq.: A.L.R. 625 et
“Assuming proper objection that where is made, it is the trial court duty of the to conduct a preliminary investigation involuntary character of an con- for a of one criminal offense, fession important ques- as to effect of arise failure of tions object defendant to testimony regarding the admission the confession or to objection that specific it was make involuntary, or failure preliminary part investigation on his or to offer evi- in passing for the court’s consideration dence on the question. its own initiative, the court on an alleged Must where confes- is offered the prosecution, sion conduct pre- liminary investigation into the of the voluntariness of investigation such an confession, or is waived the de- object? weight authority failure to fendant is to the may preliminary investigation effect that be waived, IN COURT THE SUPREME request for a or a that, proper objection the absence of of an absence preliminary instances hearing, and some ap- cannot, on proof involuntariness, offer of permitting the court, raise before peal, the issue that *12 have conducted evidence, should confession to be introduced its or a of preliminary investigation into jurisdictions in involuntary nature, court, at least those obliged voluntary, being prima a facie confession is nothing in circum- is initiative, on its own if there do so is in evidence at the confession offered stances shown the time indicating involuntary. . that it was
(cid:127)fr should offer evidence has that "It been held confession involuntary nature of the where he alleged of the ground, on this and that it from he seeks to exclude investigation. point, request preliminary On should Knox, 302 Ill. 134 N.E. 923], [People Illinois court holding objection merely an an confession was insufficient, has said: ‘While it duress is obtained duty of court avoid admission desire should be the duty on part there is likewise incompetent evidence, present if evidence, any has, to seek to to the he counsel court showing incompetency testimony, of such and we are not to hold that rests first with the to in- duty inclined court surrounding circumstances quire into the such conversation be- in evidence, nothing admission where there is in the evi- fore its promises leniency though duress, might indicate or it denceto its do so of own motion. propriety Counsel, he with desired requested have inquiry, should advance of such the court’s evidence offered. The court is ruling on the not bound to make where, here, objeсts merely as counsel inquiry on such concerning which the the statement evidence was offered Objection duress. of counsel that obtained the state- was was not evidence of the was so obtained fact. Counsel can- ment making inquiry, and then from claim error not refrain where the such promises. disclose threats and did not There was record no admissibility to its after court as ruling the evidence con- promises was No cerning in. motion was threats made to ” the evidence.’ strike Roland, Mo. S.W. 2d 1050, In State 102 A.L.R. guilty of murder in found was the first degree] 601, defendant appealed assessed death. He was from punishment judg- his FALL TERM 1968 ment In its death. judgment thereon. The Court affirmed the opinion the Court said:
“The bill of exceptions request discloses any for preliminary investigation court ascertаin whether or any not the confession nor show offer voluntary; does it tending the part of to estab- prove any the defendant to facts lish admissibility the confession was Its was at- involuntary. only tacked set is an entire absence forth above. There any tending was not vol- show that untary. long It has been the rule in this state that confessions) (speaking extrajudicial person of an accused presumed to be voluntary contrary until is shown.
White,
(2d)
737, 745,
330 Mo.
and cases
109, 112,
S.W.
there
cited. Present such a
presumption,
and absent a
preliminary investigation
prove
offer to
a confession in-
a trial
voluntary,
not to
of error in
be convicted
admit-
*13
ting in
guilt
evidence a confession of
made
a defendant. Con-
competent
fessions are
evidence, possessing
prob-
considerable
value;
in
ative
and are
and
of themselves inadmissible. While
trial courts should
the
avoid
admission in evidence of an inad-
duty
(as
on
confession,
missible
also exists
defendants
in other
analogous instances)
timely present
to be fair
the court and
with
(defendant
under which
should know
circumstances
obtained)
confession was
showing
incompetency
confession; or,
request
at least,
preliminary
court a
inves-
of the
tigation as to the admissibility of
confession in evidence. To
be
such
timely,
action should be taken
court rules on
before the
evidence;
making
the offered
and
who refrain from
defendants
such
or an offer of such
evidence should
thereafter
to successfully
be heard
assert error
admission of
based on the
case,
the confеssion. Under the facts in
the instant
court was
to
privileged
admit
in evidence
the presump
voluntary.
(Mo.
tion that
Hayes
Sup.)
v.
State
165, 168, this
S.W.
court said:
evidence, ap
When offered in
pellant objected upon
such
that
confessions were not
until
shown
competent,
they
it was
voluntary.
were
Appel
not ask
inquiry
lant did
preliminary
question
involuntary
their
properly
nature.
pro
The court
theory
that such
upon
presumed
ceeded
confessions were
voluntary.’ See, also,
Long,
205,
be
212,
Mo.
S.W.
(2d)
813;
McGuire,
State v.
809,
the offer of the instant he had sold had informed officers testimony that defendant locating in aid map them he drew revolver; his gun he disposed it; that it was the used place where he had that, as stated killing Whitted; and in Shane Officers trying help the officers locate the witness, defendant was defendant read the con- testimony was that The oral revolver. ‘I it concludes: have read the signing it, and above before fession signing (5) same, consisting pages, of five before statement knowledge. my correct to the best of is true and this statement ac- my will, own free statement made the above I have having the nature been advised and after cord, right to against my attorney interview me, and charges statement, threats, promises and no of re- making this before anyone made in order to ob- immunity have been ward or I have been warned those statement, and whom tain this say being anything I made that this state- statement this my me as evidence trial.’ We find may used ment of the cоnfession evidence under admission error case.” instant facts in the opinion majority the instant case states this: long line
“Further, jurisdiction of recent cases state practice requires judge, the better upon objection, jury excuse the absence of hear the evi of both the State dence if he an admission defendant, or confession,
whether vol understandingly made the untarily and admission or confession. Greenlee, 159 S.E. 2d supra S. v. S. Bishop, Ross, S. supra 158 S.E. 511]; *14 [269 [272 Barber, 2d S. v. 469]; S.E. N.C. 151 S.E. 2d supra N.C. Gray, v. 150 S.E. 2d 1]; S. S. v. Barnes, [268 517, 142 S.E. 2d S. supra 344]; Outing, S. Davis, 468, 121 S.E. 2d 365.” Outing, supra; above S. v. Barber, discussed S. v. supra; I have It is true that in supra. Barnes, cases Greenlee, Boss, and S. v. may language stating be found in Gray there substance what is in the statement these cases objec I think quoted above. jury excuse the judge should conduct tion alone voir dire broad and consistent with our line too of deci examination Rogers, supra, Barber, supra, S. v. S. v. represented the ma sions above quoted Jurisprud we have from American which jority rule in American Law Reports, though annotation 2d, and the ence FALL TERM 1968 may practice light legal be the in and tech- quibbles better regarding evidence, nicalities but the admission of confessions in I do not necessary think it is under all here. In the facts case Davis, S. v. supra, quotes Rogers, supra. from v. I think the Court S. the correct is as Rogers, supra, rule stated Justice Ervin S. v. Barber, supra; Justice Bobbitt in S. v. 29 Am. also Jur. 2d Evidence and in the in 102 seq. annotation A.L.R. 625 et
I anything Denno, do think that supra, said Jackson v. majority conflict with quoted rule that we have above from Jurisprudence American and from an annotation American Reports. case, Law In procedure under the New York concern- ing the determination the voluntariness confession offered by the prosecution, the Court excludes it if in no circumstances it could be voluntary, deemed but leaves to the the ultimate determina- tion voluntary character, truthfulness, of its as well as if the its evi- presents dence a fair its In voluntariness. that case a decisions, one of divided overruled its former Stein New York, pro- 346 U.S. 97 L. Ed. held that the New York 14th cedure described above violated the Amendment of the United States Constitution. Under the orthodox rule, appears which followed in at least
twenty states, including North Carolina, alone re- questions solves all of fact and determines the issue voluntariness in a preliminary hearing requested. when v. Rogers, supra; S. 18 Sw. 731-32, L. J. note an
After exhaustive can research, juris- I find no decision in this that, diction under all case, the circumstances of this holds the con- fession here was inadmissible.
In (in Report year President’s Commission last Crime Powell, Jr., which the Honorable Lewis F. an eminent member of Virginia Richmond, bar and President of Amer- former ican Association, participated) Bar it was said: “We know of no system justice other subjects of criminal law enforcement to rigid limitations as severe and as those have In we discussed.” re- many cent years permanent habitual and criminals have been turned through legal quibbles, rulings loose technicalities and of Supreme revamped Federal Court have criminal and procedures law many keeping so that such criminals an easy jаil. have time out disposition pile up legal quibble I have no another or technicality justice. impede the administration of unbroken line of de- Roberts, supra, cisions since S. decided this Court in 1827, *15 moment, present down this Court has to held that no conviction IN THE SUPREME COURT
State v. Williams founded, is whole of a defendant can stand where his conviction thorough accord I am in upon involuntary confession. part, or ab- is an entire case there of ours. In the instant with those decisions alleged confession show that tending of to any sence alleged con- opinion of the voluntary. my the evidence was not us, was record before circumstances in the here, under all the fession Superior judgment of my is affirm the vote competent, below. Court v. JOHNNY THOMAS WILLIAMS
STATE OF NORTH CAROLINA No.
(Filed 1968) 9 October Appeal Su- 1. Criminal Law from 1— certiorari § Error § — preme Appeals scope Court of Court of review Supreme pursuant grants G.S. 7A-31 to When the certiorari Appeals, only review a decision that Court of the Court of the decision presented review, rulings inquiry for the Court restricted assigned petition Appeals preserved error in the certiorari for by arguments brief, except in or citation those of authorities Supreme general. power in which its instances Court elects exercise supervision it. courts inferior to necessary parts Appeal 40— S. Criminal Law and Error § § record Elementary just of the administration consideration for efficient civil, legal adjudication processes lawsuit, of a criminal involved complete requires appellate it a thаt an have the record before court complains. appellant of the trial court of which account action and effect of record Law 158— conclusiveness 3. Criminal not, required to, appellate assume error An and should appellate appears on record before the none when court. — necessity objection for motion strike 4. Criminal Law 162—§ incompetent Nothing appearing, evidence is admission of else at the the evi- where there was no time new trial where, testimony however, incompetency offered; dence was apparent proper question until the witness does not become elicited opposing party introduced, subsequent until evidence is answers or testimony. incompetent may to- strike make motion then — of evidence to strike consideration motion Law 162—§ 5. Criminal testimony to- re- Ruling motion strike defendant’s of trial court