STATE of North Carolina
v.
Floyd Douglas BRAY.
No. 7828SC15.
Court of Appeals of North Carolina.
June 20, 1978.*191 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Charles J. Murray, Raleigh, for the State.
J. Lawrence Smith, Asheville, for defendant appellant.
BRITT, Judge.
Defendant contends the trial court committed prejudicial error in giving the following instruction to the jury: "There is evidence which tends to show that the defendant confessed that he committed the crime charged in this case." We think the contention has merit in view of the evidence in this case.
Defendant argues that while he admitted firing the gun that killed decedent, that he did not "confess" murdering or otherwise *192 unlawfully taking the life of decedent. On the contrary he argues, among other things, that his conduct was justified in that he was acting in defense of himself and his place of habitation.
The State argues that the term "confession" has been defined by our Supreme Court as "[a]ny extra-judicial statement of an accused . . . if it admits defendant's guilt of an essential part of the offense charged"; State v. Williford, 275 N.C. 575, 582, 169 S.E.2d 851, 857 (1969); and that since defendant admitted firing the weapon that killed decedent, an essential part of the offense charged, the court did not err in referring to the admission as a confession.
We do not find this argument persuasive for the reason that the definition stated in Williford has to be considered in the context of that case. There the court was passing upon the admissibility of evidence relating to an incriminating statement made by the defendant. The defendant contended that the statement was not knowingly and voluntarily made. The State contended that since the statement related only to a part of the alleged crime, it was not a confession. In that context the court stated the definition quoted above and held that absent proper findings that the incriminating statement was knowingly and voluntarily made by the defendant, evidence relating to it was inadmissible.
As authority for the definition, the court in Williford cited State v. Hamer, 240 N.C. 85, 81 S.E.2d 193 (1954). A review of Hamer reveals that the court in that case was addressing the question of admissibility of evidence relating to an incriminating statement.
After giving the challenged instruction in the case at hand, the court charged: "If you find that the defendant made that confession, then you should consider all of the circumstances under which it was made in determining whether it was a truthful confession and the weight you will give to it." In this context, we think the terms "confess" and "confession" must be considered in their broader and more usually accepted sense rather than employing the definition used in Williford and Hamer. In Black's Law Dictionary, Fourth Edition, p. 368, one of the definitions given for confess is "[t]o admit the truth of a charge or accusation". Confession is defined as: "[a] voluntary statement made by a person charged with the commission of a crime or misdemeanor, communicated to another person, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act or the share and participation which he had in it." Ibid at 369.
The instruction complained of was given in the early part of the charge as the court was instructing on various legal principles. While we are certain that the learned trial judge did not intend to express an opinion on the evidence, we think that by using the terms "confessed" and "confession" he inadvertently did so, in violation of G.S. 1-180. We think it is very likely that the jury received the impression that the court felt that the evidence showed that defendant had "confessed", that he had admitted the truth of a charge against him.
We hold that the error was sufficiently prejudicial to entitle defendant to a new trial. We refrain from discussing the other assignments of error argued in defendant's brief as they likely will not recur upon a retrial of the case.
New trial.
CLARK and ERWIN, JJ., concur.