STATE
v.
Herbert B. WALKER.
No. 670.
Supreme Court of North Carolina.
January 14, 1966.*835 Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard, for the State.
E. L. Alston, Jr., Greensboro, for defendant appellant.
BOBBITT, Justice.
In passing on a motion under G.S. § 15-173 for judgment as in case of nonsuit, (1) admitted evidence, whether competent or incompetent, must be considered, State v. Virgil, 263 N.C. 73, 75, 138 S.E.2d 777, and (2) "the evidence is to be considered in the light most favorable to the State, and the State is entitled to the *836 benefit of every reasonable intendment thereon and every reasonable inference to be drawn therefrom." State v. Corl, 250 N.C. 252, 257, 108 S.E.2d 608. Considered in the light of these legal principles, the evidence was sufficient to require submission to the jury. Hence, the assignment of error with reference to nonsuit is without merit.
Defendant assigns as error what occurred during the trial in the presence of the jury with reference to the proffered testimony of the detective as to statements made to him by defendant. This assignment requires consideration of (1) the practice and principles applicable in determining the admissibility, over objection, of testimony as to confessions, Stansbury, North Carolina Evidence, Second Edition, § 187, and (2) the prohibition in G.S. § 1-180 that "(n)o judge, in giving a charge to the petit jury, either in a civil or criminal action, shall give an opinion whether a fact is fully or sufficiently proven, that being the true office and province of the jury, * * *." As stated in State v. Williamson, 250 N.C. 204, 108 S.E.2d 443: "This section (G.S. 1-180) applies to any expression of opinion by the judge in the hearing of the jury at any time during the trial. State v. Cook, 162 N.C. 586, 77 S.E. 759."
"When a confession is offered in evidence and challenged by objection, the court, in the absence of the jury, should determine whether the confession was free and voluntary." (Our italics.) State v. Barnes, 264 N.C. 517, 520, 142 S.E.2d 344. In State v. Davis, 253 N.C. 86, 116 S.E.2d 365, Higgins, J., in accordance with decisions cited in the quotation from State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R. 2d 1104, said: "According to our practice the question whether a confession is voluntary is determined in a preliminary inquiry before the trial judge." After such preliminary inquiry has been conducted, the approved practice is for the judge, in the absence of the jury, to make findings of fact. These findings are made only for one purpose, namely, to show the basis for the judge's decision as to the admissibility of the proffered testimony. They are not for consideration by the jury and should not be referred to in the jury's presence.
If the judge determines the proffered testimony is admissible, the jury is recalled, the objection to the admission of the testimony is overruled, and the testimony is received in evidence for consideration by the jury. If admitted in evidence, it is for the jury to determine whether the statements referred to in the testimony of the witness were in fact made by the defendant and the weight, if any, to be given such statements if made. Hence, evidence as to the circumstances under which the statements attributed to defendant were made may be offered or elicited on crossexamination in the presence of the jury. Admissibility is for determination by the judge unassisted by the jury. Credibility and weight are for determination by the jury unassisted by the judge.
Here, the preliminary inquiry was conducted in the presence of the jury by the presiding judge. Since it is not the basis of decision, the fact that the questions propounded to the detective were in the nature of leading questions need not be discussed. However, it is noted that no objection or exception need be taken in any trial or hearing with reference to a question propounded to a witness by the court. G.S. § 1-206(4).
At the conclusion of said preliminary inquiry, the judge, in the presence of the jury, made this finding: "The Court finds the statement was made, if a statement were made, freely and voluntarily." Obviously, unless the statement was made, it could not be made freely and voluntarily.
The judge having made said finding of fact in the jury's presence, the effect thereof was to advise the jury that the judge was of the opinion and had determined as a fact (1) that defendant had *837 made the statements attributed to him by the detective, and (2) that defendant had made such statements freely and voluntarily. Conceding the judge did not so intend, it is manifest that said finding of fact constituted a positive expression of opinion and invaded the province of the jury in violation of G.S. § 1-180. Upon admission of the proffered testimony, credibility of the witness and the weight, if any, to be given his testimony, were exclusively for determination by the jury free from any expression of opinion by the court with reference thereto.
While not referred to in the briefs, we have considered State v. Davis, 63 N.C. 578, and State v. Fain, 216 N.C. 157, 4 S.E.2d 319. Suffice to say, those decisions, to the extent in conflict herewith, are overruled.
For error in the admission of the detective's testimony under the circumstances set forth, defendant is entitled to and is awarded a new trial.
New trial.