State v. Painter, 83

• Decision Date: 22 September 1965
• Docket Number: No. 83,83
• Citation: 144 S.E.2d 6,265 N.C. 277
• Parties: STATE, v. Albert Jennings PAINTER.
• Court: North Carolina Supreme Court

Page 6

144 S.E.2d 6

265 N.C. 277

STATE, v. Albert Jennings PAINTER.

No. 83.

Supreme Court of North Carolina.

Sept. 22, 1965.

Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Ralph Moody, for the State.

Joseph C. Reynolds, Asheville, for defendant appellant.

PARKER, Justice.

The State's evidence shows these facts: On 16 December 1964 defendant came into the store of The Sports Mart, Inc., in Asheville, operated by Gene Wike, represented himself as a safety officer for Motor Freight, and said he would like to select a trophy to present one of his drivers. He had a brief case with him, and was wearing a freight officer's cap and a black jacket. He had safety badges on his cap, three on each side, and a motorman's badge on the top. He selected a trophy which, with tax added, cost $8.19, told Wike he would have to give him an expense cheque, and asked if he would accept it. He showed Wike his driver's license with his name and home town on it, and a cheque already filled out on its face, drawn on a bank in Roanoke, Virginia, which is described in the indictment above. Wike told him he would accept the cheque, and defendant endorsed the cheque on its back, signing his name Albert Painter and writing beneath it the motor number appearing on his identification. He gave the cheque to Wike, and Wike gave him the trophy and $39.81 in money. After defendant left the store, Wike took a second look at the cheque and noticed that the 'R's' in the signature on the cheque were so similar to the 'R's' in the endorsement that they must have been made by the same man. Whereupon, he called the bank in Roanoke, Virginia. After talking to the bank in Roanoke, he went to police headquarters in Asheville and made a report. Two days later Wike went to the jail in Asheville with Mr. Allison to identify defendant. Defendant said, 'What is going on here?' Mr. Allison replied, 'Do you know this gentleman?' Defendant said: 'Yes, I know him. What is going on?' Allison had some papers and defendant evidently saw the cheque and said: 'Can't I take care of this cheque and get out of this situation?' Wike ran the cheque defendant gave him through the collection department of the First Union National Bank, and it was never paid.

About 11 p. m. on 17 December 1964, police officers arrested defendant in Asheville. He was driving a U-Drive-It car and wearing a cap with safety badges on it. Defendant had been drinking. In the car was a brief case, which defendant said was his. In the brief case was a cheque book and a cheque written out as follows:

'Nov. 23, 1964

No. 5-H

'FIRST NATIONAL BANK EXCHANGE ROANOKE, VA.

'PAY TO THE ORDER OF ALBERT PAINTER (Road Supt.) 116994

$48.00

'_____ DOLLARS

'Road Expense

Motor Freight'

Defendant said this cheque was his. Defendant had on his person $47.89 when arrested. He was placed in jail.

Defendant assigns as error the admission in evidence over his objection and exception of an extrajudicial confession of guilt made by defendant on 18 December 1964 to FBI agent Robert Moore and J. C. Chandley, a detective sergeant of the Asheville Police Department.

The State's evidence in respect to the circumstances surrounding the making of the extrajudicial confession of guilt by defendant is as follows, as shown on direct examination of Sergeant Chandley, which we summarize, except when quoted:

About 11 p. m. on 17 December 1964 the police in Asheville arrested defendant and carried him to police headquarters. He was drinking, so he was put in jail. The next morning Chandley started to talk with defendant, who said he thought his case was an FBI case, because the cheque was written on an out-of-state bank, and he wanted to see the FBI. Pursuant to defendant's request, he called Robert Moore, the FBI agent in Asheville. Moore came to police headquarters, and he, Moore, and defendant went into the interrogation room. Moore showed defendant his badge and identification and told him Chandley was with the Asheville Detective Department, and they wanted to go over some cheques. Defendant said it was all right. Moore told defendant that he had a right to have a lawyer and that he could make a telephone call; he also explained to him his rights as to making a statement or declining to make a statement, and that if he made a statement, it might be used against him. After Moore made these statements, defendant said he understood them. Defendant made no request to see a lawyer or to make a telephone call to any one. Whereupon, he and Moore talked to defendant between three and four hours, and the defendant got sick and they quit for a while. Defendant said he had been drinking from two to three pints of liquor a day. He 'obtained a little drink for him to steady him up because he was sick; he was almost ready to go into D.T.'s.'

At this point in Chandley's testimony, he was asked as to the conversation between him, defendant and agent Moore. Defendant objected, his objection was overruled, and he excepted. Defendant's counsel stated he 'was objecting on the grounds that by the officer's own testimony this alleged confession was procured under coercion and under such circumstances that this man's constitutional rights were violated.' Defendant made no request, according to the preferable practice set forth in State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R.2d 1104, that the judge conduct a preliminary inquiry in the absence of the jury in respect to the competency of his statement and that he be permitted to testify as to the circumstances surrounding his making the statement, and neither did he request permission to offer any testimony in respect thereto. Neither did he ask permission to cross- examine Chandley to show, if he could, that his statements to Chandley and Moore were not in fact voluntary or not understandingly made because of his mental and physical condition. Defendant merely relied upon his objection and exception as to the competency of the confession. The judge made no finding of fact in respect to the competency or incompetency of the confession, but merely overruled defendant's objection in respect to its being offered in evidence by the State.

This is a summary of the conversation between Chandley and defendant, narrated by Chandley on direct examination: The cheque over there and another one were placed in front of the defendant and he admitted writing the cheque. He asked defendant why he signed R. S. Painter and not like the others, and defendant said he 'goofed.' He asked defendant if he knew what it meant by signing R. S. Painter to it, and defendant said 'he knew it meant forgery.' He showed him nine cheques. Defendant said he had built time in Kentucky for cheques, that he got out in October of last year, got to drinking and running around, and started writing cheques again. He went from Kentucky to Tennessee, to Knoxville, where he rented a U-Drive-It car in Knoxville. He worked in Tennessee and then came to Asheville and rented a Hertz U-Drive-It. He got a case that had been taken out of the U-Drive-It car and asked defendant if it was his and he said yes. He showed him a cheque and defendant said it was his. A book of blank cheques was in the case. Defendant said he would go to the hotel at night and borrow a typewriter. Defendant said he 'goofed' when he signed the cheque R. S. Painter. He showed defendant about five cheques and also four other cheques. Defendant said he wrote the cheques.

The circumstances surrounding the making of the confession by defendant as shown by cross-examination of Chandley are as follows: 'I picked the defendant up on the night of the 19th [sic] about 11:00 o'clock. He was not drunk. He was drinking. We put him in jail and saw him the next morning about 9:00 or 9:15 o'clock. The defendant told me he had been drinking 2 to 3 pints of liquor a day. I did not know the man but could tell he was a drinking man. He looked some different from what he does now. He turned sick while we were talking to him. He just turned real white. He said he would like to see a doctor. I interrogated him for three or four hours. He got so bad that I got a drink from the Chief to settle his nerves. He said he was sick because he hadn't had anything to eat and had been drinking. They only served coffee in jail that morning.'

FBI agent Robert Moore was not called as a witness by the State. The State's evidence consisted of the testimony of Wike and Chandley. After the State rested its case, defendant stated he desired to call Moore. Moore was called, and defendant's counsel talked with him. After such conversation, defendant 'in open court voluntarily waived the appearance of agent Moore of the FBI.' Defendant did not testify as to the circumstances surrounding the making of his extrajudicial confession and offered no evidence.

In respect to intoxication of accused at time of confession as affecting its admissibility, Bobbitt, J., said for the Court in State v. Isom, 243 N.C. 164, 90 S.E.2d 237, 69 A.L.R.2d 358:

'Ordinarily, intoxication of an accused person does not render inadmissible his confession of facts tending to incriminate him. But the extent of his intoxication when the confession was made is relevant; and the weight, if any, to be given a confession under the circumstances disclosed is exclusively for determination by the jury. 20 Am.Jur., Evidence, sec. 525; 22 C.J.S. Criminal Law, § 828; Annotation: 74 A.L.R. 1102 et seq., and supplemental decisions. See, State v. Bryan, 74 N.C. 351.'

See also State v. Stephens, 262 N.C. 45, 136 S.E.2d 209, and annotation to the Isom case in 69 A.L.R.2d 361 et seq.

Ordinarily, the fact that an extrajudicial confession of crime is made after intoxicants have been furnished the accused by police officers having him in custody is not sufficient, according to the weight of authority, to render the confession inadmissible, although there is contrary authority. 2 Wharton's Criminal Evidence, 12th ed. by Anderson, Ch. 7, ...