State v. Guffey, 3

• Decision Date: 26 February 1964
• Docket Number: No. 3,3
• Citation: 261 N.C. 322,134 S.E.2d 619
• Parties: STATE, v. Lawrence GUFFEY and Gene Clontz.
• Court: North Carolina Supreme Court

Page 619

134 S.E.2d 619

261 N.C. 322

STATE, v. Lawrence GUFFEY and Gene Clontz.

No. 3

Supreme Court of North Carolina.

Feb. 26, 1964

T. W. Bruton, Atty. Gen., and Harry W. McGalliard, Deputy Atty. Gen., for the State.

Hamrick & Hamrick, Rutherfordton, for defendants.

MOORE, Justice.

The evidence for the State is summarized in part as follows: The defendants, Clontz and Guffey, went to the home of Ben Hudson on the night of 8 May 1963 and knocked at the door. Hudson, who had gone to bed, got up and opened the door. Guffey blew out the lamp and Clontz grabbed Hudson and held him. Guffey took Hudson's overalls and went outside. There were two billfolds in the overalls, one contained $960 in $20 bills, the other contained $11. Clontz released Hudson and went outside; Hudson followed yelling, and Clontz struck him and threatened to kill him. Defendants got in a white Chevrolet and drove off. Hudson called to his son, Clyde, who lived nearby, told him that he had been robbed and asked him to stop the car. Clyde shot at the car with a rifle; several bullets struck the right-hand side of the car but it did not stop. Officers were called. Hudson described the man who had blown out the lamp and stated that he would recognize him if he saw him again but did not know his name; he also said that he would be able to identify the other man by his voice. The overalls were found some distance away but the money was missing. The defendants were arrested the following day and placed in jail. Hudson picked Guffey from a 'line up' and identified him as the man who blew out the lamp. Clontz was not identified by Hudson at the jail. At the trial Hudson positively identified both defendants as the robbers and stated that he had known them 15 to 20 years. There was other evidence of a circumstantial nature tending to implicate the defendants.

Defendants offered no evidence.

Over the insistent objection of defendants the court permitted Wilbur Kizer, a deputy sheriff of Rutherford County, and John Vanderford, a member of the State Bureau of Investigation, to testify to statements made by one Johnny Walker in the presence and hearing of defendants. According to the witnesses, Walker made the statements in the jail after defendants were arrested and in custody, and the witnesses, Kizer and Vanderford, and Walker, Melvin Sisk and the defendants were present. Defendants made no response and did not deny the truth of the statements.

Kizer and Vanderford testified in substance that Walker, in the presence and hearing of defendants, stated to Vanderford that on the morning of 9 May 1963 the defendants came to the home of Melvin Sisk in Forest City and Clontz bought from Walker a Dodge automobile for $200, paid for it in $20 bills and had a roll of $20 bills left, that Guffey offered to sell Walker a 1960 Chevrolet automobile, that Walker, Sisk and the defendants went in the Dodge to a location where they found a white Chevrolet in a field near the edge of a wooded area, that Walker bought the Chevrolet from Guffey and paid $25 for it, that it had several bullet holes in the right-hand side and Guffey told Walker he should make the holes larger with a knife and he could tap the car with an ax where the bullet holes were and it would be easier to fix.

Neither Walker nor Sisk testified at the trial.

The challenged evidence is not admissible unless it is competent as an admission by adoption or acquiescence. When a statement is made, either to a person or within his hearing, implicating him in the commission of a crime, to which he makes no reply, it may be inferred under certain circumstances that the statement is true else he would have denied it. It is not sufficient that the statement was made in the presence of the defendant against whom it is sought to be used and that he failed to deny it; it is further necessary that the circumstances should have been such as to call for a denial on his part, and to afford him an opportunity to make it. Silence alone is not what gives the incident probative value. Where the occasion is such that the person is not called upon or expected to speak, no statement made in his presence can be used against him because of his silence. The mere silence of the party creates no evidence, one way or the other. The temperaments of people and their conception of the fitness of things are so variant, and the silence of an accused may spring from such a variety of motives (some of which may be consistent with innocence), that failure to reply to or deny a statement is liable to misinterpretation and abuse and evidence thereof should be received with great caution and, except under well recognized conditions, should be held inadmissible altogether. It is not the silence of defendant, but his conduct or some circumstance in connection with the statement made in his presence that gives the statement evidentiary weight. State v. Wilson, 205 N.C. 376, 171 S.E. 338; Stansbury: North Carolina Evidence (1946), § 179, pp. 389-392; 31A C.J.S., Evidence, §§ 295, 296, pp. 755-760. See also: State v. Temple, 240 N.C. 738, 83 S.E.2d 792; State v. Rich, 231 N.C. 696, 58 S.E.2d 717; State v. Evans, 189 N.C. 233, 126 S.E. 607.

Furthermore, an admission or confession, even where it may be implied by silence, must be voluntary. Any circumstance indicating coercion or lack of voluntariness renders the admission incompetent. State v. Hawkins, 214 N.C. 326, 199 S.E. 284; State v. Dills, 208 N.C. 313, 180 S.E. 571. No one can be forced to incriminate himself,...