State v. SmithAnnotate this Case
178 S.E.2d 597 (1971)
STATE of North Carolina v. Marshall SMITH.
Supreme Court of North Carolina.
January 29, 1971.
*600 Downing, Downing & David by Harold D. Downing, Fayetteville, for defendant appellant.
Robert B. Morgan, Atty. Gen., Millard R. Rich, Jr., Andrew A. Vanore, Jr., Asst. Attys. Gen., for the State.
On this appeal the defendant argues the trial court committed two prejudicial errors: (1) The court should have sustained his motion to quash the indictment and should have dismissed the action because of defects in the North Carolina Capital Felony Statute under which the indictment was drawn; and, conditionally, (2) If his motion to quash be not allowed, then he is entitled to a new trial because of the court's error in permitting the State to introduce his confession in evidence. These two questions alone were discussed and hence all other objections are abandoned.
As ground for his motion to quash the indictment charging murder in the first degree, the defendant argues G.S. § 14-17 requires the trial jury to pass on both guilt and punishment, thereby placing upon him the impermissible burden of deciding whether to testify in mitigation of punishment and thereby take the risk of being required to give evidence against himself on the issue of guilt, or to forego all right to testify.
In the event the court should fail to sustain his motion to quash the indictment, then he should be awarded a new trial on the ground his confession was involuntary and was erroneously admitted in evidence.
Motions to quash indictments charging capital felonies based on the grounds here alleged have been before this Court many times. Without exception, the Court has denied them. "This court has repeatedly upheld the procedure which permits the trial jury in a capital case to decide guilt and at the same time and as a part of the verdict fix the punishment at life imprisonment." State v. Dozier, N.C., 178 S.E.2d 412, decided January 20, 1971. See also State v. Roseboro, 276 N.C. 185, 171 S.E.2d 886; State v. Hill, 276 N.C. 1, 170 S.E.2d 885; State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241; Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908; Spencer v. Texas, 385 U.S. 554, 87 S. Ct. 648, 17 L. Ed. 2d 606. We adhere to our former decisions and hold the trial court correctly denied the motion to quash.
The trial court conducted a full hearing before overruling the defendant's motion to suppress his confession. The most that may be said for the defendant is that the evidence on the voir dire was conflicting. True the defendant testified that proper warnings were not given him and that his request for a lawyer prior to and during his interrogation was denied. He testified he was assaulted by the officers and threatened if he did not confess. His wife corroborates his story that he had demanded *601 the right to see a lawyer at the time of his arrest.
On the other hand, officers testified the required warnings were given. The defendant, when told the murder weapon had been discovered, "Blurted out, `it was an accident'." After Officer Washburn had testified, repeating the substance of the confession, defense counsel sought by cross examination to impeach him. As corroboration, the State introduced the written documents which the defendant verified before the justice of the peace.
At the conclusion of the hearing it became the duty of the trial judge to weigh the evidence on the voir dire, find the facts, and based on the findings, to determine whether the admissions were free, voluntary and understandingly made. Where the evidence is conflicting (as here), the judge must resolve the conflict. He sees the witnesses, observes their demeanor as they testify and by reason of his more favorable position, he is given the responsibility of discovering the truth. The appellate court is much less favored because it sees only a cold, written record. Hence the findings of the trial judge are, and properly should be, conclusive on appeal if they are supported by the evidence. State v. Barnes, 264 N.C. 517, 142 S.E.2d 344; State v. Moore, 275 N.C. 141, 166 S.E.2d 53; State v. Wright, 275 N.C. 242, 166 S.E.2d 681. In this case the physical evidence gives sturdy support to the verity of the defendant's confession. When the murder weapon was stolen it contained four live rounds of ammunition. Mrs. Flores was shot four times. The defendant told the officer when he shot Mrs. Flores the first time she fell and screamed and he kept shooting. He made the statement that he went into the house and asked for a drink of water. Mrs. Flores went to the kitchen, got a glass of water and gave it to him. He drank the water and returned the glass to her and she placed it on the kitchen table. The officers found the water glass on the kitchen table in the Flores home. Examination by the fingerprint expert disclosed the defendant's fingerprints on that glass.
The evidence made out a strong case of murder in the first degree (a killing in the perpetration of a robbery). Careful review fails to disclose any error of law in the trial.