dissenting:
At Fall Term 1967, I concurred in the result, “No Error,” of the Court’s decision. State v. McDaniel, 272 N.C. 556, 158 S.E. 2d 874.
Officer Heye testified defendant, although not interrogated, persisted in telling what had happened; and that under these circumstances, defendant told him he had cut Leggett with a knife and meant to do it, intending thereby to put a stop to Leggett’s “picking and staying in behind him all the time.” This volunteered testimony,, in my opinion, was competent; and, in view of its probative force, I did not consider the other challenged rulings on evidence, if erroneous, of such prejudicial significance as to justify awarding a new trial. However, the Court decided Heye’s testimony was incompetent.
Further consideration in the light of Harrison v. United States, 392 U.S. 219, 88 S. Ct. 2008, 20 L. ed. 2d 1047, must proceed upon the basis that the incompetency of Heye’s said testimony is the established law of this case. When so considered, it is my opinion that the prejudicial impact of Heye’s testimony, particularly the portion thereof in which he stated defendant had told him he had cut Leg-gett with a knife and meant to do it, intending thereby to put a stop to Leggett’s “picking and staying in behind him all the time,” was; of such adverse probative force as to constitute a material factor in determining whether it was advisable for the defendant to take the witness stand and testify in his own behalf. The thrust of this evidence contradicts the view that defendant was acting in self-defense.
Accepting the Court’s prior determination that Heye’s testimony was erroneously admitted as the law of this case, it is my opinion that, under authority of Harrison, defendant should be awarded a new trial.
Shabp, J., joins in dissenting opinion.