State v. Clyburn , 273 N.C. 284 ( 1968 )

159 S.E.2d 868 (1968) 273 N.C. 284

STATE
v.
Kelly CLYBURN, Bobby McVay and Henry Fryer.

No. 248.

Supreme Court of North Carolina.

March 20, 1968.

Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard for the State.

William J. Richards, Jr., Charlotte, for defendant McVay.

T. O. Stennett, Charlotte, for defendant Fryer.

BRANCH, Justice.

APPEAL OF DEFENDANT McVAY.

Defendant McVay assigns as error the admission into evidence of his confession.

The test of admissibility of a defendant's confession is whether the statement was in fact made voluntarily. State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R. 2d 1104; State v. Gosnell, 208 N.C. 401, 181 S.E. 323. Whether the statement was made voluntarily so as to be admissible before the jury is a question to be determined by the trial judge upon evidence presented to him in absence of the jury. State v. Outing, 255, N.C. 468, 121 S.E.2d 847. It is a question of fact, to be determined by the jury from evidence admitted in its presence, whether such statement was made by the defendant. State v. Guffey, 261 N.C. 322, 134 S.E.2d 619. However, the conclusions of law drawn from the facts found are not binding on the appellate courts. State v. Hines, 266 N.C. 1, 145 S.E.2d 363.

The procedure to be followed when objection is interposed as to the voluntariness of a confession is set forth in the case of State v. Gray, 268 N.C. 69, 150 S.E.2d 1, where Lake, J., speaking for the Court, stated:

"When the State proposes to offer in evidence the defendant's confession or admission, and the defendant objects, the proper procedure is for the trial judge to excuse the jury and, in its absence, hear the evidence, both that of the State and that of the defendant, upon the question of the voluntariness of the statement. In the light of such evidence and of his observation of the demeanor of the witnesses, the judge must resolve the question of whether the defendant, if he made the statement, made it voluntarily and with understanding. State v. Barnes, supra, [264 N.C. 517, 142 S.E.2d 344]; State v. Outing, supra; State v. Rogers, supra. The trial judge should make findings of fact with reference to this question and incorporate those findings in the record. Such findings of fact, so made by the trial judge, are conclusive if they are supported by competent evidence in the record. No reviewing court may properly set aside or modify those findings if so supported by competent evidence in the record. State v. Barnes, supra; State v. Chamberlain, supra, [263 N.C. 406, 139 S.E.2d 620]; State v. Outing, supra; State v. Rogers, supra."

Defendant contends that if he made a statement, it was involuntary since he was insistently questioned after he indicated to the officers that he did not desire to talk about the case. To support this contention, defendant relies on that part of the opinion in Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, which states:

"Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the conduct of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked."

The record is in sharp conflict as to this contention. Defendant offers evidence that he was questioned insistently after indicating that he did not wish to talk. The State offered evidence that defendant freely talked upon first being questioned, and only indicated that he did not wish to sign a waiver.

In the case of State v. Logner, 266 N.C. 238, 145 S.E.2d 867, it is stated:

"* * * Much of the evidence which the trial judge heard was conflicting, but ``where the evidence is merely in conflict on the question as to whether or not a confession was voluntary, the ruling of the court is conclusive on appeal.' State v. Hammond, 229 N.C. 108, 47 S.E.2d 704. The evidence fully supports Judge Bickett's findings. Defendant had and was accorded the right to a preliminary hearing on the competency of his alleged confession. The judge, however, was not required either to believe or to accept his testimony as if it were true."

See also State v. Outing, supra.

Here the trial court properly excused the jury, and in the absence of the jury heard evidence from the State and defendant upon the question of the voluntariness of defendant's confession. The court thereupon made findings of fact which were incorporated into the record. The record contains substantial competent evidence to support the trial court's finding that defendant's confession was voluntarily made.

The jury by its verdict found that defendant made the statement. This finding is binding on appeal.

Defendant McVay's assignment of error that the trial court erred in overruling his motion for judgment of nonsuit cannot be sustained.

"The naked extra-judicial confession of guilt by a defendant must be supported by evidence aliunde which establishes the corpus delicti. The corpus delicti may be established by direct or circumstantial evidence. State v. Cope, 240 N.C. 244, 81 S.E.2d 773; State v. Thomas, 241 N.C. 337, 85 S.E.2d 300; State v. Whittemore, 255 N.C. 583, 122 S.E.2d 396." State v. Bishop, 272 N.C. 283, 158 S.E.2d 511.

In the instant case the felonious breaking and entering of the building belonging to Brown-Rogers-Dixson Company and the felonious larceny of personal property therefrom were established aliunde the confession of defendant McVay by the testimony of the witness O. K. Tesh. This evidence, when taken in connection with defendant McVay's confession, was sufficient to carry the case to the jury against defendant McVay.

No prejudicial error is made to appear as against defendant McVay.

APPEAL OF HENRY FRYER

Henry Fryer's sole assignment of error is that the trial court erred in overruling his motion for judgment as of nonsuit.

The State's case is entirely dependent on the testimony of the witness John Cureton to connect defendant Fryer with the offense with which he is charged.

It is stated in State v. Lawrence, 196 N.C. 562, 146 S.E. 395:

The competency, admissibility and sufficiency of evidence is for the court to determine; the weight, effect and credibility is for the jury. State v. Utley, supra [126 N.C. 997, 35 S.E. 428]; State v. Blackwelder, 182 N.C. 899, 109 S.E. 644."

Here the Court is not concerned with whether the evidence is competent, but the question is whether it is sufficient to carry the case to the jury. We further recognize that "It is not the function of this court to pass on the credibility of witnesses or to weigh the testimony." State v. Hanes, 268 N.C. 335, 150 S.E.2d 489.

In the case of State v. Cutler, 271 N.C. 379, 156 S.E.2d 679, certain well recognized principles of law pertinent to this assignment of error are clearly and concisely stated for the Court by Lake, J., as follows:

"Upon a motion for judgment as of nonsuit in a criminal action, the evidence must be considered by the court in the light most favorable to the State, all contradictions and discrepancies therein must be resolved in its favor and it must be given the benefit of every reasonable inference to be drawn from the evidence. State v. Bruton, 264 N.C. 488, 142 S.E.2d 169; State v. Thompson, 256 N.C. 593, 124 S.E.2d 728; State v. Bass, 255 N.C. 42, 120 S.E.2d 580 [86 A.L.R. 2d 259]. All of the evidence actually admitted, whether competent or incompetent, including that offered by the defendant, if any, which is favorable to the State, must be taken into account and so considered by the court in ruling upon the motion. State v. Walker, 266 N.C. 269, 145 S.E.2d 833; State v. Virgil, 263 N.C. 73, 138 S.E.2d 777.

"The question for the Court is whether, when all of the evidence is so considered, there is substantial evidence to support a finding both that an offense charged in the bill of indictment, or warrant if it be a case tried upon a warrant, has been committed and that the defendant committed it. State v. Bass, 253 N.C. 318, 116 S.E.2d 772. If, when the evidence is so considered, it is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion for nonsuit should be allowed. State v. Guffey, 252 N.C. 60, 112 S.E.2d 734. This is true even though the suspicion so aroused by the evidence is strong. State v. Chavis, 270 N.C. 306, 154 S.E.2d 340."

Two propositions are involved in the proof of a criminal charge: (1) Proof that a crime has been committed, i.e., proof of the corpus delicti, and (2) proof that it was done by the person charged, i.e., proof of the identity of the defendant. State v. Edwards, 224 N.C. 577, 31 S.E.2d 762; State v. Bass, supra.

It would be incongruous to submit the question of identity of the defendant to the jury for their determination beyond a reasonable doubt upon the sole testimony of a witness who could not "honestly say that they were the two men."

Considered in the light most favorable to the State and resolving all contradictions and discrepancies in its favor, the testimony of the State's witness was, at best, so equivocal and uncertain as to raise only a suspicion or conjecture as to the identity of the defendant as the perpetrator of the crime.

The trial court erred in overruling defendant Fryer's motion for judgment as of nonsuit.

As to defendant McVay: No Error.

As to defendant Fryer: Reversed.