State v. Walker, 670
| Decision Date | 14 January 1966 |
| Docket Number | No. 670,670 |
| Court | North Carolina Supreme Court |
| Parties | STATE, v. Herbert B. WALKER. |
Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard, for the State.
E. L. Alston, Jr., Greensboro, for defendant appellant.
In passing on a motion under G.S. § 15-173 for judgment as in case of nonsuit, (1) admitted evidence, whether competent or incompetent, must be considered, State v. Virgil, 263 N.C. 73, 75, 138 S.E.2d 777, and (2) 'the evidence is to be considered in the light most favorable to the State, and the State is entitled to the benefit of every reasonable intendment thereon and every reasonable inference to be drawn therefrom.' State v. Corl, 250 N.C. 252, 257, 108 S.E.2d 608. Considered in the light of these legal principles, the evidence was sufficient to require submission to the jury. Hence, the assignment of error with reference to nonsuit is without merit.
Defendant assigns as error what occurred during the trial in the presence of the jury with reference to the proffered testimony of the detective as to statements made to him by defendant. This assignment requires consideration of (1) the practice and principles applicable in determining the admissibility, over objection, of testimony as to confessions, Stansbury, North Carolina Evidence, Second Edition, § 187, and (2) the prohibition in G.S. § 1-180 that '(n)o judge, in giving a charge to the petit jury, either in a civil or criminal action, shall give an opinion whether a fact is fully or sufficiently proven, that being the true office and province of the jury, * * *.' As stated in State v. Williamson, 250 N.C. 204, 108 S.E.2d 443:
'When a confession is offered in evidence and challenged by objection, the court, in the absence of the jury, should determine whether the confession was free and voluntary.' (Our italics.) State v. Barnes, 264 N.C. 517, 520, 142 S.E.2d 344. In State v. Davis, 253 N.C. 86, 116 S.E.2d 365, Higgins, J., in accordance with decisions cited in the quotation from State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R.2d 1104, said: 'According to our practice the question whether a confession is voluntary is determined in a preliminary inquiry before the trial judge.' After such preliminary inquiry has been conducted, the approved practice is for the judge, in the absence of the jury, to make findings of fact. These findings are made only for one purpose, namely, to show the basis for the judge's decision as to the admissibility of the proffered testimony. They are not for consideration by the jury and should not be referred to in the jury's presence.
If the judge determines the proffered testimony is admissible, the jury is recalled, the objection to the admission of the testimony is overruled, and the testimony is received in evidence for consideration by the jury. If admitted in evidence, it is for the jury to determine whether the statements referred to in the testimony of the witness were in fact...
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