State v. Fain

• Citation: 4 S.E.2d 319,216 N.C. 157
• Decision Date: 20 September 1939
• Docket Number: 4.
• Parties: STATE v. FAIN.
• Court: United States State Supreme Court of North Carolina

4 S.E.2d 319

216 N.C. 157

STATE v. FAIN.

No. 4.

Supreme Court of North Carolina

September 20, 1939

Criminal prosecution tried upon indictment charging the defendant with burglary in the first degree, and with rape.

Verdict Guilty of burglary in the first degree as charged in the first count, and guilty of rape as charged in the second count in the bill of indictment.

Judgment Death by asphyxiation.

The defendant appeals, assigning errors.

D H. Tillitt, of Andrews, and C. E. Hyde, of Murphy, for appellant.

Harry McMullan, Atty. Gen., and T. W. Bruton and George B. Patton Asst. Attys. Gen., for the State.

STACY Chief Justice.

The scene of the crimes of which the defendant has been convicted was a hospital in Murphy, Cherokee County; the time before dawn or about 3:30 A. M., 29 January, 1939.

The first count in the indictment is directed to the time, manner and intent with which the defendant entered the hospital; the second is addressed to his attack upon a nurse employed therein. State v. Allen, 186 N.C. 302, 119 S.E. 504. The details of the offenses are not material to a proper solution of the questions of law presented by the appeal. It is enough to say the evidence is so full and complete that its sufficiency is not challenged by demurrer or motion to nonsuit. It supports the verdict on both counts. Indeed, it may not be amiss to call it compelling.

The defendant offered no evidence before the jury. His only challenges are; first, to the competency of his written confession as evidence; second, to the court's comment upon its voluntariness, and, third, to the court's instruction to the jury not to consider a verdict of burglary in the second degree.

It is the established procedure with us that the competency of a confession is a preliminary question for the trial court, State v. Andrew, 61 N.C. 205, to be determined in the manner pointed out in State v. Whitener, 191 N.C. 659, 132 S.E. 603, and that the court's ruling thereon will not be disturbed, if supported by any competent evidence. State v. Moore, 210 N.C. 686, 188 S.E. 421. No error has been made to appear in the admission of the confession in evidence. State v. Alston, 215 N.C. 713, 3 S.E.2d 11. Hence, the defendant's first exception is not sustained.

The second exception is directed to the court's comment upon the defendant's confession as evidence, namely "which the court has held to be competent in this case because it appears that the confession was taken without hope of reward or without any extortion or fear, and that it was fairly taken after the prisoner had been duly warned of his rights." This did not constitute an expression of opinion, such as is prohibited by C.S. § 564, for the...