State v. Outing, 218

CourtUnited States State Supreme Court of North Carolina
Citation255 N.C. 468,121 S.E.2d 847
Docket NumberNo. 218,218
PartiesSTATE, v. George Harold OUTING, Jr.
Decision Date11 October 1961

T. W. Bruton, Atty. Gen., H. Horton Rountree, Asst. Atty. Gen., for the state.

Charles V. Bell, Charlotte, for defendant, appellant.

HIGGINS, Justice.

The defendant contends the court committed error by holding the defendant's confessions voluntary, and by admitting them in evidence. The law governing the admissibility of confessions has been the subject of frequent review by this Court. The leading authorities are collected in State v. Davis, 253 N.C. 86, 116 S.E.2d 365, certiorari denied 365 U.S. 855, 81 S.Ct. 816, 5 L.Ed.2d 819. To the many cases there cited we may add State v. Biggs, 224 N.C. 23, 29 S.E.2d 121; State v. Jones, 203 N.C. 374, 166 S.E. 163; State v. Livingstone, 202 N.C. 809, 164 S.E. 337, cited by the defendant.

When the State offers a contession in a criminal trial and the defendant objects on the ground it was not voluntary, the question thus raised is determined by the judge in a preliminary inquiry in the absence of the jury. State v. Davis, supra.

The trial judge hears the evidence, observes the demeanor of the witnesses and resolves the question. The appellate court must accept the decision if it is supported by competent evidence.

In the preliminary inquiry the testimony of the officers was unequivocal that the confessions were made voluntarily, without fear, threat, coercion, or inducement. On the contrary, the defendant said he was roughed up, intimidated by being shot at, and his life threatened. His only corroboration was the evidence of his father and his wife that his face was puffed up and the admission of the officers that Detective Fesperman fired two shots from his service revolver while the investigation was under way and the prisoner was in the field with the officers. The defendant testified that the officer shot at him and shot within a few inches of his feet. This the officers denied. Fesperman himself testified: 'After the fingerprint man had taken all of the pictures and thrown the bulbs up there in the woods, and, if I am not mistaken, we were getting ready to leave, the cover was back on (manhole) and I had some old ammunition and said I am going to try it * * * I a'int never talked to Outing * * * I don't recall seeing Outing after that.' Other officers corroborated Fesperman that he was some distance from Outing and that he shot in the woods at a flashlight bulb.

The shooting by Fesperman was in violation of police regulations. It was highly improper, and, at best, a thoughtless blunder. However, the firing of the shots occurred after the defendant had helped locate the knife, and as the officers were leaving the...

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25 cases
  • Outing v. State of North Carolina, 10926.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • July 21, 1967
    ...was in violation of police regulations and that "it was highly improper, and, at best, a thoughtless blunder." State v. Outing, 255 N.C. 468, 121 S.E.2d 847, 850 (1961). Counsel for the State of North Carolina during oral argument on this appeal stated that he thought he himself would have ......
  • State v. Vickers, 739
    • United States
    • North Carolina Supreme Court
    • October 9, 1968
    ...supra; State v. Ross, supra; State v. Barber, 268 N.C. 509, 151 S.E.2d 51; State v. Gray, supra; State v. Barnes, supra; State v. Outing, 255 N.C. 468, 121 S.E.2d 847; State v. Davis, 253 N.C. 86, 116 S.E.2d The procedure approved in this line of decisions places North Carolina in the categ......
  • Jackson v. Denno, 62
    • United States
    • U.S. Supreme Court
    • June 22, 1964
    ...P. 555, 556-557 (1913) (dictum that trial judge may in his discretion follow Massachusetts rule). NORTH CAROLINA: State v. Outing, 255 N.C. 468, 472, 121 S.E.2d 847, 849 (1961); State v. Davis, 253 N.C. 86, 94-95, 116 S.E.2d 365, 370 (1960), cert. denied, 365 U.S. 855, 81 S.Ct. 816, 5 L.Ed.......
  • State v. Frank
    • United States
    • North Carolina Supreme Court
    • November 14, 1973
    ...of the jury upon the evidence presented on the voir dire. State v. Clyburn, 273 N.C. 284, 159 S.E.2d 868 (1968); State v. Outing, 255 N.C. 468, 121 S.E.2d 847 (1961). 'The trial judge should make findings of fact with reference to this question and incorporate those findings in the record.'......
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