STATE
v.
HAMER.
No. 363.
Supreme Court of North Carolina.
April 7, 1954.*195 Harry McMullan, Atty. Gen., and Ralph Moody, Asst. Atty. Gen., for the State.
Russell J. Lanier, Beulaville, and Norwood Boney, Kenansville, for the prisoner.
ERVIN, Justice.
The prisoner insists initially that he is entitled to a new trial because the trial judge erred in admitting his second extrajudicial statement in evidence. He bases this contention on the theory that all the evidence adduced on the preliminary inquiry showed this statement to be involuntary in character.
We accept as valid the definition of Dean Wigmore, the great master of the law of evidence, that "a confession is an acknowledgment in express words by the accused in a criminal case of the truth of the guilty fact charged or of some essential part of it." Wigmore on Evidence (3d Ed., 1940), Section 821. As a consequence, there is no occasion for us to debate the intriguing question whether the rule excluding involuntary confessions of guilt is applicable to involuntary admissions of incriminating facts which merely tend, in connection with other facts, to show guilt. 20 Am.Jur., Evidence, § 478; 22 C.J.S., Criminal Law, § 732. Although the prisoner did not acknowledge to Bradshaw and Miller his guilt of the crime of rape, he did acknowledge to them his guilt of an essential part of that offense, to-wit, an assault and battery.
The extrajudicial confession of the accused in a criminal case is admissible against him if, and only if, it was in fact voluntarily made. State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R. 2d 1104. As a general rule, a confession is presumed to be voluntary, and the burden is on the accused to show the contrary. State v. Thompson, 227 N.C. 19, 40 S.E.2d 620; State v. Biggs, 224 N.C. 23, 29 S.E.2d 121; State v. Grass, 223 N.C. 31, 25 S.E.2d 193; State v. Murray, 216 N.C. 681, 6 S.E.2d 513; State v. Grier, 203 N.C. 586, 166 S.E. 595; State v. Rodman, 188 N.C. 720, 125 S.E. 486; State v. Christy, 170 N.C. 772, 87 S.E. 499; State v. Sanders, 84 N.C. 728. The general rule is subject to this exception: Where a confession has been obtained under circumstances rendering it involuntary, any subsequent confession is presumed to proceed from the same vitiating influence, and the burden is on the State to establish the voluntary character of the subsequent confession before it can be received in evidence. State v. Stevenson, 212 N.C. 648, 194 S.E. 81; State v. Gibson, 216 N.C. 535, 5 S.E.2d 717; State v. Godwin, 216 N.C. 49, 3 S.E.2d 347; State v. Moore, 210 N.C. 686, 188 S.E. 421; State v. Fox, 197 N.C. 478, 149 S.E. 735; State v. Brittain, 117 N.C. 783, 23 S.E. 433; State v. Drake, 113 N.C. 624, 18 S.E. 166; State v. Drake, 82 N.C. 592; State v. Lowhorne, 66 N.C. 638; State v. Roberts, 12 N.C. 259. The finding of the trial judge that the subsequent confession was voluntarily made will not be disturbed on appeal if it is supported by evidence. State v. Godwin, supra; State v. Moore, supra; State v. Fox, supra; State v. Lowry, 170 N.C. 730, 87 S.E. 62; State v. Fisher, 51 N.C. 478; State v. Scates, 50 N.C. 420; State v. Gregory, 50 N.C. 315.
When the case on appeal is read in the light of these rules, it is manifest that the trial judge did not err in admitting the *196 second or subsequent extrajudicial statement in evidence. To be sure, the first or prior statement was extorted from the prisoner through fear engendered in his mind by the threats of the arresting officers and the prison camp employees to surrender him to a mob allegedly gathering near the home of the prosecutrix, and the presumption arose that the second or subsequent statement proceeded from the same improper influence. The testimony of the State's witnesses Bradshaw and Miller was sufficient, however, to overcome the presumption and establish the voluntary character of the second or subsequent statement. Indeed, the evidence given by the prisoner himself on the preliminary inquiry amply supports the finding of the trial judge that the second or subsequent statement was voluntarily made.
The prisoner asserts secondarily that he is entitled to have the cause tried anew because the testimony of the State's witness Hester indicating that he was an escaped convict at the time named in the indictment substantially impaired his right to a fair trial. He predicates this contention on the theory that this incompetent evidence necessarily impressed itself so strongly on the minds of the jurors to his prejudice that its subsequent withdrawal by the trial judge did not remove its prejudicial effect.
This contention rests on pure speculation. As a matter of fact, the incompetent evidence was not admitted by the trial judge. It was volunteered in the first instance by the witness. It was elicited in the second instance by an indefinite question of the solicitor, which did not foreshadow its nature. Its validity as evidence was promptly and emphatically disavowed by the trial judge in both instances. The incompetent evidence did not disclose that at the time of his escape the prisoner was serving a sentence for a serious crime or for a crime involving sex. For these reasons, we are impelled to hold that this cause falls within the purview of the general rule relating to such matters, and that the statement of the incompetent evidence by the witness was rendered harmless to the prisoner by the prompt and emphatic action of the trial judge in withdrawing the evidence from the consideration of the jurors and instructing them to disregard it. State v. Campo, 233 N.C. 79, 62 S.E.2d 500; State v. Strickland, 229 N.C. 201, 49 S.E.2d 469; State v. Artis, 227 N.C. 371, 42 S.E.2d 409; State v. King, 219 N.C. 667, 14 S.E.2d 803.
Since the trial judge did not commit error in any matter of law or legal inference, the proceedings in the court below must be upheld.
No error.