State v. Davis, 217

Decision Date12 October 1960
Docket NumberNo. 217,217
Citation253 N.C. 86,116 S.E.2d 365
CourtNorth Carolina Supreme Court
PartiesSTATE, v. Elmer DAVIS, Jr.

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 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 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, 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 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.

In support of their contention the trial court denied to the prisoner due process rights, they cite many cases in which confessions have been rejected when a prisoner has been held beyond the time when he should have been taken before a committing magistrate for preliminary hearing. Careful examination will disclose that confessions were rejected under a rule of evidence set up for trials in the Federal courts and not for violation of constitutional rights under the Due Process Clause.

In the case of Brown v. Allen, 344 U.S. 443, at page 476, 73 S.Ct. 397, at page 417, 97 L.Ed. 469, the Supreme Court of the United States said: 'If the delay in the arraignment of petitioner was greater than that which might be tolerated in a federal criminal proceeding, due process was not violated. Under the leadership of this Court a rule has been adopted for federal courts, that denies admission to confessions obtained before prompt arraignment notwithstanding their voluntary character. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100 * * *. This experiment has been made in an attempt to abolish the opportunities for coercion which prolonged detention without a hearing is said to enhance. But the federal rule does not arise from constitutional sources. The Court has repeatedly refused to convert this rule of evidence for federal courts into a constitutional limitation on the states. Gallegos v. State of Nebraska, 342 U.S. 55, 63-65, 72 S.Ct. 141, 146-147, 96 L.Ed. 86. Mere detention and police examination in private of one in official state custody do not render involuntary the statements or confessions made by the person so detained.'

The prisoner argues the notation on the arrest sheet that he is to be held for Hucks and Festerman re Mrs. Cooper and not allowed to see or call anyone was a violation of his Due Process rights by the police department. The undisputed evidence, however, is the notation was made by the arresting officer on an envelope at the time of arrest and copied on the arrest sheet at the time the prisoner was placed in jail. The undisputed evidence as testified to by the chief of police is that no one in the department had authority to enter any such memorandum or order. Like-wise undisputed is the evidence of Captain McCall that the notation or order was not enforced. The prisoner asked to see his sister, whom the officers searched for, after some difficulty found, and delivered the prisoner's message. She appeared at the jail and Captain McCall admitted her to a private conference with the prisoner. In fact the prisoner does not even claim he requested or wanted to see any other person. The notation on the record, there-fore, becomes nothing more than an unauthorized and unenforced entry made by the arresting officer at the time of the arrest. There is no question about the right of the officer to make the arrest. Even a private citizen of the State 'shall have authority to apprehend any convict who may escape before the expiration of his term of imprisonment whether he be guilty of a felony or misdemeanor, and retain him in custody and deliver him to the State Prison Department.' G.S. § 148-40.

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