The State’s evidence, in brief summary, tends to show: On February 9, 1963, about 3:00 a.m., T. S. Matthews, part owner, was sleeping inside the premises оf Matthews & Gentry Service Station and Grocery. He was awakened by a tapping noise at one of the
There was evidence tending to connect defendant with the crime. Decision on this appeal is based on the admission over defendant’s objections of the pоrtion of such evidence set forth below.
Defendant’s assignments of error, based on his exceptions to the court’s denial of his general motions for judgment as of nonsuit,, are overruled. Pertinent legal principles include the following: (1) Admitted еvidence, whether competent or incompetent, must be considered in passing on defendant’s motions for judgment аs of nonsuit,
S. v. McMilliam,
Defendant assigns as error the admission over his objections of testimony of Deputy Sheriff Covert as to statements made by Oliver Evans on February 12, 1963, at Wake Memorial Hospital. The facts in evidence bearing upon the competency of this testimony are stated below.
Covert arrested defendant shortly after 7:30 a.m., February 9, 1963, and put him in the Wake County Jail. Thereafter, defendant was in custody. Covert advised defendant he was “under arrest for burglary.” Between February 9th and February 12th, Covert questioned defendant “several times.” Covert testified: “Virgil repeatedly told me that he did not know anything about the breakin.”
From early morning on February 9th until February 12th and thеreafter, Evans was a patient in Wake Memorial Hospital. On the night of February 11th, Covert went to the hospital and obtained a statement signed by Evans “of where he was and what happened on the morning of the 9th.” Covert testified: “After obtaining the statement I came back and confronted Virgil with it. I read it to him.” (Note: The written statement was not offered in evidencе.)
The following day, February 12th, defendant was taken to Evans’ hospital room. In the presence of Evans, A. G. Scarborough, а deputy sheriff, and defendant, Covert read the statement he had obtained from Evans the preceding night and asked Evans if it was true. Evans stated it was true. Thereafter, according to Covert, Evans made the following statement in the presence and hearing of defendant: “Richard, you know you carried me down to Mr. Poole’s Store, which I broke into, didn’t get much money. We talked it over and decided to go to Matthews & Gentry, went to Matthews & Gentry. I broke in, I got shot, came back out to the road, I tried to get in yоur car, and I said, ‘Richard, I have been shot, carry me to the hospital,’ you drove off and left me there to die.”
Covеrt testified: “When Oliver Evans made this statement, Virgil dropped his head and begun to ciy — shake all over. After Oliver Evans made this statеment that I have testified to to Richard Virgil, Richard Virgil had an opportunity to make any statement that he might want to in reply. I asked him, I said, ‘Richard, how
A warrant charging defendant with burglary “was signed” by Covert on February 15th and servеd on February 16th.
Nothing else appearing, Covert’s testimony as to what Evans said was incompetent as hearsay and thеrefore inadmissible. Stansbury, North Carolina Evidence, § 138. Here, the competency thereof depends upon whether, under the circumstances, defendant’s failure to deny such statements may be considered an implied admission of the truth thereof. Competency is to be determined by legal principles established by decisions of this Court reviewed and aрplied in
S. v. Temple,
According to undisputed evidence: Defendant was under arrest and in custody from February 9th through February 12th. Covert had advised defendant, he was under arrest for burglary. Covert questioned defendant several times and defendant repeatedly told Covert he knew nothing about the alleged burglаry. No warrant charging defendant with burglary had been issued. Under these circumstances, Covert “took” defendant to Evans’ hospital room. Against this factual background, defendant’s failure to deny Evans’ incriminating statements may not, in our opinion, be cоnsidered an implied admission of the truth thereof.
Moreover, as stated by
Moore, J.,
in
S. v. Guffey, supra:
. . an admission or confession, even where it may be implied by silence, must bе voluntary. Any circumstance indicating coercion or lack of volun-tariness renders the admission incompetent.
State v. Hawkins,
214 N.C.
326,
Under the circumstances disclosed by the evidence, we are of opinion, and so hold, that Covert’s testimony as to Evans’ statements (declarations) was incompetent and that the admission thereof was prejudicial error.
New trial.