State v. Outing , 255 N.C. 468 ( 1961 )

121 S.E.2d 847 (1961) 255 N.C. 468

STATE
v.
George Harold OUTING, Jr.

No. 218.

Supreme Court of North Carolina.

October 11, 1961.

T. W. Bruton, Atty. Gen., H. Horton Rountree, Asst. Atty. Gen., for the State.

Charles V. Bell, Charlotte, for defendant, appellant.

HIGGINS, Justice.

The defendant contends the court committed error by holding the defendant's confessions voluntary, and by admitting them in evidence. The law governing the admissibility of confessions has been the subject of frequent review by this Court. The leading authorities are collected in State v. Davis, 253 N.C. 86, 116 S.E.2d 365, certiorari denied 365 U.S. 855, 81 S. Ct. 816, 5 L. Ed. 2d 819. To the many cases there cited we may add State v. Biggs, 224 N.C. 23, 29 S.E.2d 121; State v. Jones, 203 N.C. 374, 166 S.E. 163; State v. Livingstone, 202 N.C. 809, 164 S.E. 337, cited by the defendant.

When the State offers a contession in a criminal trial and the defendant objects on the ground it was not voluntary, the question thus raised is determined by the judge in a preliminary inquiry in the absence of the jury. State v. Davis, supra.

The trial judge hears the evidence, observes the demeanor of the witnesses and resolves the question. The appellate court must accept the decision if it is supported by competent evidence.

In the preliminary inquiry the testimony of the officers was unequivocal that the confessions were made voluntarily, without fear, threat, coercion, or inducement. On the contrary, the defendant said he was roughed up, intimidated by being shot at, and his life threatened. His only corroboration was the evidence of his father and his wife that his face was puffed up and the admission of the officers that Detective Fesperman fired two shots from his service revolver while the investigation was under way and the prisoner was in the field with the officers. The defendant testified that the officer shot at him and shot within a few inches of his feet. This the officers denied. Fesperman himself testified: "After the fingerprint man had taken all of the pictures and thrown the bulbs up there in the woods, and, if I am not mistaken, we were getting ready to leave, the cover was back on (manhole) and I had some old ammunition and said I am going to try it * * * I a'int never talked to Outing * * * I don't recall seeing Outing after that." Other officers corroborated Fesperman that he was some distance from Outing and that he shot in the woods at a flashlight bulb.

The shooting by Fesperman was in violation of police regulations. It was highly improper, and, at best, a thoughtless blunder. However, the firing of the shots occurred after the defendant had helped locate the knife, and as the officers were leaving the scene with the prisoner. The occurrence took place on Saturday. Neither at the time nor thereafter that day did the defendant make any admission. Fesperman did not participate in the investigation further. At the jail that night the defendant escaped. He was re-arrested next day and thereafter made the confession both to the officers and to his father. No doubt the officers confronted the defendant with the many inconsistencies and contradictions in his story and the suspicion attached to his claim to have seen so many different people near the scene—one with a long knife—at such an hour. When caught in a web of his own weaving he apparently thereafter confessed.

Judge Patton, with patience, care and discrimination, conducted the preliminary inquiry, saw and heard the witnesses, thereupon found the defendant's statements were voluntary. Substantial evidence supports the finding. It is binding on appeal. In this connection we quote from Watts v. State of Indiana, 338 U.S. 49, 69 S. Ct. 1347, 1348, 93 L. Ed. 1801: "In the application of so embracing a constitutional concept as ``due process,' it would be idle to expect at all times unanimity of views. Nevertheless, in all the cases that have come here during the last decade from the courts of the various States in which it was claimed that the admission of coerced confessions vitiated convictions for murder, there has been complete agreement that any conflict in testimony as to what actually led to a contested confession is not this Court's concern. Such conflict comes here authoritatively resolved by the State's adjudication." In like manner this Court is bound by the determination made in the trial court, if supported by evidence. There the witnesses are heard and the facts are found. In the trial below, there is

No error.