State v. FuquaAnnotate this Case
152 S.E.2d 68 (1967)
269 N.C. 223
STATE v. Jerry Arnold FUQUA.
Supreme Court of North Carolina.
January 20, 1967.
*70 Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Millard R. Rich, Jr., for the State.
Herbert F. Pierce, Graham, for defendant.
Appellant assigns as error the ruling of the court below that the confession allegedly made by defendant to officer Cook was voluntary."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. * * * 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. Gray, 268 N.C. 69, 150 S.E.2d 1; State v. Barnes, 264 N.C. 517, 142 S.E.2d 344; *71 State v. Outing, 255 N.C. 468, 121 S.E.2d 847. However, "What facts amount to such threats or promises as make confessions not voluntary and admissible in evidence is a question of law, and the decision of the judge in the court below can be reviewed by this Court; so, what evidence the judge should allow to be offered to him to establish these facts is a question of law. So, whether there be any evidence tending to show that confessions were not made voluntarily, is a question of law. But whether the evidence, if true, prove these facts, and whether the witnesses giving testimony to the court touching the facts are entitled to credit or not, and in case of a conflict of testimony which witness should be believed by the court, are questions of fact to be decided by the judge; and his decision cannot be reviewed in this court, which is confined to questions of law." State v. Andrew, 61 N.C. 205; State v. Whitener, 191 N.C. 659, 132 S.E. 603; State v. Woodruff, 259 N.C. 333, 130 S.E.2d 641.
The trial court properly excused the jury and heard evidence on voir dire as to whether defendant's statement was voluntary, giving defendant opportunity to testify and offer evidence.
It is admitted that officer Cook made statements, or failed to make statements, on which defendant relies in order to show that his confession was involuntary. Therefore, we need not consider whether the trial judge properly found facts in order to conclude that the confession was voluntary, since there was no conflict in the pertinent testimony offered on the voir dire. State v. Keith, 266 N.C. 263, 145 S.E.2d 841.
This Court must, however, decide as a matter of law whether the circumstances of this case rendered the confession inadmissible.
Speaking to the subject of free and voluntary confession in State v. Roberts, 12 N.C. 259, Henderson, J., said:"Confessions are either voluntary or involuntary. They are called voluntary when made neither under the influence of hope or fear, but are attributable to that love of truth which predominates in the breath of every man, not operated upon by other motives more powerful with him, and which, it is said, in the perfectly good man cannot be countervailed. These confessions are the highest evidences of truth, even in cases affecting life. But it is said, and said with truth, that confessions induced by hope or extorted by fear are, of all kinds of evidence, the least to be relied on, and are therefore entirely to be rejected."
And in the same case Taylor, C. J., said: "(A) confession obtained by the slightest emotions of hope or fear ought to be rejected." The principles enunciated in this landmark case have been recognized by this Court in the cases of State v. Livingston, 202 N.C. 809, 164 S.E. 337; State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R.2d 1104; State v. Barnes, supra; State v. Gray, supra.
In the case of State v. Woodruff, supra, the defendant, who was being held on charges of forgery, volunteered to assist the sheriff in the solution of certain murders if the sheriff would use his influence to help him. The evidence reveals that the sheriff came to suspect the defendant was involved in the murders and told him that "he certainly would try to help him" if he confessed. The Court held that the evidence was insufficient to support the conclusion that the confession later made by the defendant was voluntary and that the admission of such confession was prejudicial error.
Where a defendant charged with murder, while imprisoned in the county jail, was induced to confess by the sheriff's promise that if he told the truth the sheriff *72 would do whatever he could for him, it was held that the confession was involuntary and was inadmissible in evidence. People v. Gonzales, 136 Cal. 666, 69 P. 487.
In Couley v. State, 12 Mo. 462, it appeared that the defendant, accused of burglary, was induced to confess by the officer who arrested him. The officer told defendant "that he would not appear against him if he would confess." The Court held that testimony of a confession thus induced should have been excluded from the jury.
In United States v. Kurtz, 26 Fed.Cas. 826, Case No. 15,546 (C.C. D. of C.) defendant was arrested by two constables on a charge of stealing goods and was told by the constables that if he would tell where the goods were, they would do what they could for him. The court rejected the confession as to the goods as being involuntary.
In the instant case the police officer while questioning the defendant, then in jail custody, said to defendant: "That if he wanted to talk to me then I would be able to testify that he talked to me and was cooperative." This statement by a person in authority was a promise which gave defendant a hope for lighter punishment. It was made by the officer before the defendant made his confession, and the officer's statement was one from which defendant could gather some hope of benefit by confessing. The total circumstances surrounding the defendant's confession impels the conclusion that there was aroused in him an "emotion of hope" so as to render the confession involuntary.
The uncontradicted evidence shows that the confession of defendant was not freely and voluntarily given within the meaning of our decisions, and it is incompetent as a matter of law.
We do not deem it necessary to discuss the merit of the defendant's other assignments of error, since there must be a