State v. Whitener

• Decision Date: 28 April 1926
• Docket Number: 379.
• Citation: 132 S.E. 603,191 N.C. 659
• Parties: STATE v. WHITENER.
• Court: North Carolina Supreme Court

132 S.E. 603

191 N.C. 659

STATE v. WHITENER.

No. 379.

Supreme Court of North Carolina

April 28, 1926

Appeal from Superior Court, Guilford County; Schenck, Judge.

John Whitener was convicted of murder, and he appeals. New trial.

Criminal prosecution, tried upon an indictment charging the prisoner with a capital felony, to wit, murder in the first degree.

From an adverse verdict and judgment of death pronounced thereon, the prisoner appeals, assigning errors.

Credibility of defendant's testimony as to alleged confession was matter for jury.

Sidney S. Alderman and Kenneth M. Brim, both of Greensboro, for appellant.

D. G Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

STACY C.J.

There is evidence on behalf of the state tending to show that on the night of June 9, 1925, Fred G. Claywell, in company with two fellow policemen of the city of High Point, went to the home of the defendant, John Whitener, to break up a gambling game, which they had reason to believe was going on in his house.

Quite a battle ensued between the officers and the colored men who had gathered at the defendant's home for a game of cards. Fred G. Claywell, one of the officers, was shot, which resulted in his death a few days thereafter. The defendant was shot twice, though not mortally wounded, while another of the card players was killed almost instantly. In the confusion which followed an oil lamp was turned over, and the house was destroyed by fire. Officer Claywell and the defendant were both taken to the hospital. The latter recovered from his injuries-the former did not. While the defendant was in the hospital, the police officers kept him constantly under guard, and endeavored to elicit from him a statement as to who shot Officer Claywell and the circumstances under which the shooting occurred.

After several days' questioning, the prisoner signed a written confession to the effect that he was the one who shot Officer Claywell; in fact, the only one in his party who had a pistol; and that the wounded officer returned the fire while lying on the floor, or after he had been felled by the defendant.

To the introduction of this evidence, the accused, through his counsel, objected, on the ground that the confession was not given voluntarily; and the prisoner asked that the jury be withdrawn from the courtroom, to the end that he might interrogate the state's witnesses before the court on the preliminary question as to the competency of such proposed evidence. The jury was excused, and on cross-examination by counsel for the prisoner the witnesses for the state testified that the confession was made voluntarily, after the prisoner had been informed of his rights, and that no inducements whatever were held out to him which caused him to make it.

For the purpose of denying this evidence touching the voluntariness of his confession, the prisoner, through his counsel, asked that he be allowed to take the stand, not before the jury nor in the cause, but before the judge, to give his version as to how the alleged confession was obtained from him. His honor ruled that, as a matter of law, he could not hear the testimony of the defendant, in the absence of the jury, on the preliminary inquiry looking to the admissibility of the alleged confession. In this ruling we think there was error. The evidence of the prisoner, had he been allowed to testify, and if believed, would have rendered the alleged confession incompetent as evidence against him. State v. Roberts, 12 N.C. 259. See, also, State v. Davis, 34 S.E. 198, 125 N.C. 612; State v. Drake, 82 N.C. 593; State v. Dildy, 72 N.C. 325; and State v. Matthews, 66 N.C. 106, as pertinent authorities bearing upon the instant case.

"A confession is voluntary in law if, and only if, it was, in fact, voluntarily made." Mr. Justice Brandeis, in Ziang Sung Wan v. United States, 45 S.Ct. 1, 266 U.S. 1, reported in 69 L.Ed. 131, with valuable note.

The case of Bram v. United States, 18 S.Ct. 183, 168 U.S. 532, 42 L.Ed. 568, contains an exhaustive review of the English and American authorities on the subject; the opinion of the court being written by Mr. Justice White, with a dissenting opinion filed by Mr. Justice Brewer. See, also, Ammons v. State, 32 So. 9, 80 Miss. 592, 92 Am. St. Rep. 607, as reported in 18 L. R. A. (N. S.) 768, for a collection of the pertinent authorities in a valuable note by the annotator covering the whole subject now under investigation.

After declining to hear the testimony of the defendant touching the manner in which the alleged confession was secured, the court found as a fact from the evidence of the state's witnesses that the confession was given voluntarily, and thereupon permitted the solicitor to offer it in evidence against the prisoner.

The record, therefore, presents the question squarely as to whether the prisoner, at his own request, was entitled, as a matter of law, to testify before the judge, in the absence of the jury, on the preliminary inquiry addressed only to the court, with respect to the admissibility of the alleged confession as evidence against him. We think the prisoner, at his own request, was entitled to be heard on this preliminary inquiry; the credibility of his testimony, of course, being a matter for the judge.

In this jurisdiction it is the province of the judge, and not that of the jury, to determine every question, whether of law or of fact, touching the admissibility of evidence. Munroe v. Stutts, 31 N.C. 49. The parties are entitled, as a matter of right, to have the judge definitely decide all questions relating to the admissibility of evidence, and to admit or reject it accordingly. State v. Dick, 60 N.C. 440, 86 Am. Dec. 439.

Speaking to the identical question in State v. Andrew, 61 N.C. 205, Pearson, C.J., said:

"'It is the duty of the judge to decide the facts upon which depends the admissibility of testimony; he cannot put upon others the decision of a matter, whether of law or of fact, which he himself is bound to make.' State v. Dick, 60 N.C. 440 . *** What facts amount to such threats or promises as make confessions not voluntary and admissible in evidence is a question of law, and the decision of the judge in the court below can be reviewed by this court; so, what evidence the judge should allow to be offered to him to establish these facts is a question of law. So, whether there be any evidence tending to show that confessions were not made voluntarily, is a question of law. But whether the evidence, if true, proves these facts, and whether the witnesses giving testimony to the court touching the

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