State v. Davis, No. 217

Docket NºNo. 217
Citation253 N.C. 86, 116 S.E.2d 365
Case DateOctober 12, 1960
CourtUnited States State Supreme Court of North Carolina

Page 365

116 S.E.2d 365
253 N.C. 86
STATE,
v.
Elmer DAVIS, Jr.
No. 217
Supreme Court of North Carolina.
Oct. 12, 1960

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

Charles V. Bell, Charlotte, W. B. Nivens, for defendant, appellant.

HIGGINS, Justice.

Counsel for the prisoner contend the trial court committed five prejudicial errors: (1) Holding the confessions voluntary and permitting the State to offer them in evidence. (2) Overruling defendant's motion to dismiss. (3) Failing to set aside the judgment upon the ground the confessions were involuntary and obtained and offered in evidence in violation of the prisoner's rights under the Due Process Clause of the Fourteenth Amendment. (4) Ordering counsel for the prisoner to sit down and reminding him the trial is not a Roman circus. (5) Denying prisoner's timely request for special instructions.

The first three errors assigned in reality present one question: Were the prisoner's admissions to the officers voluntary? If voluntary, as the term is defined by our Court, they were admissible in evidence. As stated by Henderson, J., in State v. Roberts, 12 N.C. 259, 'Confessions are either voluntary or involuntary. They are called voluntary when made neither under the influence of hope or fear, but are attributable to that love of truth which predominates in the breast of every man, not operated upon by other motives more powerful with him, * * * .'

In the case of State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 576, 28 A.L.R.2d 1104, Justice Ervin collected and analyzed our leading authorities on confessions. We quote one paragraph from his opinion:

'An extrajudicial confession of guilt by an accused is admissible against him when, and only when, it was in fact voluntarily made. State v. Thompson, 227 N.C. 19, 40 S.E.2d 620; State v. Moore, 210 N.C. 686, 188 S.E. 421; State v. Anderson, 208 N.C. 771, 182 S.E. 643. A confession is presumed to be voluntary, however, until the contrary appears. State v. Mays, 225 N.C. 486, 35 S.E.2d 494; State v. Grier, 203 N.C. 586, 166 S.E. 595; State v. Christy, 170 N.C. 772, 87 S.E. 499. When the admissibility of a confession is challenged on the ground that it was induced by improper means, the trial judge is required to determine the question of [253 N.C. 94] fact whether it was or was not voluntary before he permits it to go to the jury. State v. Litteral, 227 N.C. 527, 43 S.E.2d 84; State v. Andrew, 61 N.C. 205. In making this preliminary inquiry, the judge should

Page 370

afford both the prosecution and the defense a reasonable opportunity to present evidence in the absence of the jury showing the circumstances under which the confession was made. State v. Gibson, 216 N.C. 535, 5 S.E.2d 717; State v. Alston, 215 N.C. 713, 3 S.E.2d 11; State v. Smith, 213 N.C. 299, 195 S.E. 819; State v. Blake, 198 N.C. 547, 152 S.E. 632; State v. Whitener, 191 N.C. 659, 132 S.E. 603. The admissibility of a confession is to be determined by the facts appearing in evidence when it is received or rejected, and not by the facts appearing in evidence at a later stage of the trial. State v. Richardson, 216 N.C. 304, 4 S.E.2d 852; State v. Alston, supra. When the trial court finds upon a consideration of all the testimony offered on the preliminary inquiry that the confession was voluntarily made, his finding is not subject to review, if it is supported by any competent evidence. State v. Hairston, 222 N.C. 455, 23 S.E.2d 885; State v. Manning, 221 N.C. 70, 18 S.E.2d 821; State v. Alston, supra. A confession is not rendered incompetent by the mere fact that the accused was under arrest or in jail or in the presence of armed officers at the time it was made. State v. Litteral, supra; State v. Bennett, 226 N.C. 82, 36 S.E.2d 708; State v. Thompson, 224 N.C. 661, 32 S.E.2d 24; State v. Wagstaff, 219 N.C. 15, 12 S.E.2d 657.'

Without repeating the testimony which is recited in the statement of facts, the trial court had the evidence of the officers that the prisoner was advised he need not make a statement; that if he did it might be used against him. These statements are repeated in the paper signed by him. The officers testified the prisoner had not been mistreated in any way; that he had the same food as other prisoners; that he did not ask to see or communicate with any person except his sister. This request was granted. On the day after the confession the prisoner told Dr. Tross, his former pastor--a member of his own race--that he had been well treated by the officers. Thus Judge Campbell had before him on the preliminary inquiry substantial and competent evidence upon which to base his finding the admissions of the prisoner were voluntary.

According to our practice the question whether a confession is voluntary is determined in a preliminary inquiry before the trial judge. He hears the evidence, observes the demeanor of the witnesses, [253 N.C. 95] and resolves the question. The appellate court must accept the determination if it is supported by competent evidence. State v. Fain, 216 N.C. 157, 4 S.E.2d 319; State v. Whitener, 191 N.C. 659, 132 S.E. 603; State v. Andrew, 61 N.C. 205.

The confession is corroborated in many essential particulars: By the findings of the pathologist; by John Shannon who saw a person hiding in the hedge near the Nivens monument as the prisoner told the officers he had done; by the police having previously found Mrs. Cooper's pocketbook (wrapped in a newspaper) and her glasses in the hedge where he said he had hidden them; by Bishel Buren Hayes who testified his shoes and socks, billfold and contents were stolen from him as the prisoner had admitted to the officers; by the fact the prisoner was able to take the officers to the bushes near the railroad track and recover his discarded clothing. The evidence was amply sufficient to make out a case of murder in the perpetration of the crime of rape. The motion to dismiss was properly denied.

The prisoner has urged that the trial court denied him his rights under the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. Of course, it is as much the duty of the State courts to protect the prisoner's rights under the Due Process Clause of the Fourteenth Amendment as it is to protect his rights under the State

Page 371

Constitution and State laws. There is this difference, however, as we understand it: We place our own interpretation on our State Constitution and laws; but we are required to accept the interpretation the Supreme Court of the United States has placed on the Due Process Clause. Constantian v. Anson Constitution of North Carolina, Article I, Sections 3 and 5; Norris v. Western Union Telegraph Co., 174 N.C. 92, 93 S.E. 465.

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44 practice notes
  • State v. Vickers, No. 739
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 9, 1968
    ...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 category of the Wigmore or 'orthodox' rule, which h......
  • Muncie v. Travelers Ins. Co., No. 595
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 12, 1960
    ...742, to the effect, that the failure of insured in a policy similar to the one here to comply with an express condition precedent to [253 N.C. 86] liability under the policy is an affirmative defense which the insurer has the burden of proving, is, in my opinion, erroneous and should be dis......
  • Davis v. State of North Carolina, No. 8453.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • November 7, 1962
    ...Jr., to death in the gas chamber for the rapemurder of Mrs. Foy Bell Cooper. The Supreme Court of North Carolina affirmed. State v. Davis, 253 N.C. 86, 116 S.E.2d 365 (1960). Certiorari was denied by the Supreme Court of the United States, 365 U.S. 855, 81 S.Ct. 816, 5 310 F.2d 905 L.Ed.2d ......
  • Culombe v. Connecticut, No. 161
    • United States
    • United States Supreme Court
    • June 19, 1961
    ...v. Brown, 1951, 233 N.C. 202, 63 S.E.2d 99; State v. Rogers, 1951, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R.2d 1104; State v. Davis, 1960, 253 N.C. 86, 116 S.E.2d 365. North Dakota: State v. Nagel, 1947, 75 N.D. 495, 28 N.W.2d 665; State of Braathen, 1950, 77 N.D. 309, 43 N.W.2d 202. Ohio: Sta......
  • Request a trial to view additional results
44 cases
  • State v. Vickers, No. 739
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 9, 1968
    ...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 category of the Wigmore or 'orthodox' rule, which h......
  • Muncie v. Travelers Ins. Co., No. 595
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 12, 1960
    ...742, to the effect, that the failure of insured in a policy similar to the one here to comply with an express condition precedent to [253 N.C. 86] liability under the policy is an affirmative defense which the insurer has the burden of proving, is, in my opinion, erroneous and should be dis......
  • Davis v. State of North Carolina, No. 8453.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • November 7, 1962
    ...Jr., to death in the gas chamber for the rapemurder of Mrs. Foy Bell Cooper. The Supreme Court of North Carolina affirmed. State v. Davis, 253 N.C. 86, 116 S.E.2d 365 (1960). Certiorari was denied by the Supreme Court of the United States, 365 U.S. 855, 81 S.Ct. 816, 5 310 F.2d 905 L.Ed.2d ......
  • Culombe v. Connecticut, No. 161
    • United States
    • United States Supreme Court
    • June 19, 1961
    ...v. Brown, 1951, 233 N.C. 202, 63 S.E.2d 99; State v. Rogers, 1951, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R.2d 1104; State v. Davis, 1960, 253 N.C. 86, 116 S.E.2d 365. North Dakota: State v. Nagel, 1947, 75 N.D. 495, 28 N.W.2d 665; State of Braathen, 1950, 77 N.D. 309, 43 N.W.2d 202. Ohio: Sta......
  • Request a trial to view additional results

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