STATE
v.
MATTHEWS et al.
No. 74.
Supreme Court of North Carolina.
March 29, 1950.*630 Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., for the State.
Robert S. Cahoon, Greensboro, for defendants, appellants.
SEAWELL, Justice.
The record on appeal is voluminous and contains a multitude of exceptions. These *631 required and have received careful consideration but space forbids elaboration here.
The phases of the trial most stressed in the appellants' brief and oral argument, and in which they find the more serious challenge to its validity, will be discussed.
1. The theory that defendants were entitled to a discharge as upon acquittal as grounded in the motions in arrest of judgment and similar motions affecting the verdict, has neither technical nor circumstantial merit. The theory is that there was only one charge against them,that of felonious secret assault,and the manner in which the court dealt with it had the effect of nonsuiting the state thereon, which, under the statute operates as an acquittal, G.S. § 15-173.
Consonant with the practice here we regard the effect of the action taken by the court as simply withdrawing from the consideration of the jury the more aggravating and more serious elements of the offense charged, leaving to their consideration the lesser crime or degree of the offense. This, within the frame of the case presented, was favorable to the defendants, and certainly within the law and approved practice. Without it, it would still have been competent for the jury to convict the defendants of a lesser degree of crime charged. G.S. §§ 15-169, 15-170; State v. Jackson, 199 N.C. 321, 154 S.E. 402; State v. Williams, 185 N.C. 685, 116 S.E. 736; State v. High, 215 N.C. 244, 1 S.E.2d 563; State v. Jones, 222 N.C. 37, 38, 21 S.E.2d 812; State v. Bentley, 223 N.C. 563, 27 S.E.2d 738; State v. Weinstein, 224 N.C. 645, 31 S.E.2d 920, 156 A.L.R 625; State v. Oxendine, 224 N.C. 825, 32 S.E.2d 648.
The withdrawal of the more aggravated charge from consideration by the jury and submission of the less aggravated phase of the offense was within the discretion of the trial judge.
Closely parallel with the foregoing subject was the exception taken to the fact that the trial judge did not receive the verdict of the jury as first tendered, in response to the formal question of the court as to how they had found. In it they found both defendants guilty, answering, "Yes, guilty of aiding and abetting," but the judge sent the jury back for further deliberation after further instructing them as to the significance of aiding and abetting while present.
The answer to this objection may be found in State v. Perry, 225 N.C. 174, loc. cit. 176, 33 S.E.2d 869, 870; "When, and only when, an incomplete, imperfect, insensible, or repugnant verdict or a verdict which is not responsive to the issues or indictment is returned, the court may decline to accept it and direct the jury to retire, reconsider the matter, and bring in a proper verdict. State v. Arrington, 7 N.C. 571; State v. McKay, 150 N.C. 813, 63 S.E. 1059; State v. Bazemore, supra [193 N.C. 336, 137 S.E. 172]; State v. Noland, 204 N.C. 329, 168 S.E. 412; Queen v. DeHart, 209 N.C. 414, 184 S.E. 7." See also State v. Wilson, 218 N.C. 556, 11 S.E.2d 567.
The conclusion to which the jury had come was not materially changed by their further consideration. State v. Forshee, 228 N.C. 268, 45 S.E.2d 372; State v. Thompson, 227 N.C. 19, 40 S.E.2d 620.
The instruction given was called for by the evidence that tended to show that the defendants acted in concert. State v. Gibson, 226 N.C. 194, 37 S.E.2d 316; among other things accommodating the person chosen to do the shooting by jockeying the car so that upon its return the shot could be fired out of the right window by a righthanded person.
Defendants were tried for an assault with a deadly weapon and no special evidence was required beyond the intent to commit the unlawful act, and this will be inferred or presumed from the act itself. 1 McClain's Criminal Law, secs. 239, 240.
2. The appellants urge that the confessions made by these defendants were involuntary and should have been denied admission in evidence. There is no suggestion that either of them was coerced, threatened, subject to torture, physical or mental, worn down by repeated questioning or otherwise mistreated in order to produce *632 a confession as the purchase price of surcease from pain or weariness. The contention is that there was some implied promise, or at least hope held out in the conversation between Wyatt and Cook that the defendant would be treated more leniently. Wyatt had said, "Jim, we know it was you. You had better come clean." There was no further inducement.
As careful as this court has always been to see that incriminating statements made by persons accused of crime are in fact and in deed voluntary before admitting them in evidence, free from the influence of promise or undue persuasion, and fully recognizing that necessity, we are unable to class the remarks made by Wyatt to his nephew Cook in any of the objectionable categories.
The evidence discloses that Wyatt went to talk with Cook on his own initiative without any evidence that he went, as contended by appellants, with official procurement. He does not appear to have been an emissary, stooge or agent provocateur of the officials. However, the sheriff was present during part of the conversation and this must be given due consideration. The sheriff also warned him that what he said could be used as evidence for him or against him, and this warning, while not required in this state, State v. Dixon, 215 N.C. 438, 2 S.E.2d 371; State v. Grier, 203 N.C. 586, 166 S.E. 595, has been uniformly considered as bearing on the voluntariness of the statement.
Matthews, when first arrested was asked by Sheriff Bardin: "What in the world were you thinking about?" And Matthews replied, "I don't know." The sheriff then said, "You were with the boys, weren't you?" And Matthews replied, "Yes."
Later, at the jail, all three of the defendants being present, Cook was asked to tell what happened and gave a detailed account of the affair, stating that "we went out to Mr. Wyatt's house in Elmer Matthews' car and David Brock fired the bullets." Matthews, upon a simple question by the sheriff admitted the correctness of the statement. Later on Matthews stated that he was driving the car and Brock and Cook were in the back seat; that the gun was fired from the back seat but that he did not know who fired it. Since Matthews, without persuasion or inducement, admitted the correctness of Cook's statement, he was not privy to any constitutional immunity which counsel for appellants can claim for Cook; and his objection to the admission of the evidence is untenable.
The card-index-method of determining the case before us would be a poor substitute for reason, and a sense of justice both to the public and the men accused of crime. The court is always happy to find and follow well reasoned precedent, but must in each instance be guided by its own reason and sense of right on a study of the facts before it, since, because of their infinite variety, every case must stand on its own bottom. In appraising the significance of the interchange between Wyatt and Cook, supposed to have elicited the self-incriminating statement, it is logical to assume that the reaction is normal to the stimulus; emotionally responsive to the appeal. There is nothing in Wyatt's exhortation to "come clean" that should incite fear or inspire hope in the normal mind, neither threat nor promise. It appears to be an appeal to conscience, which every person, not completely amoral, has in some degree; or to that indefinable urge to square himself with the truth which experience has shown is often an incentive to confession in the most abandoned.
The subject is one of repeated occurrence in our Reports and the following cases will be found apposite to the decision: State v. Thompson, supra; State v. Litteral, 227 N.C. 527, 43 S.E.2d 84; State v. Grass, 223 N.C. 31, 25 S.E.2d 193; State v. Oxendine, supra; State v. Caldwell, 212 N.C. 484, 193 S.E. 716; State v. Bohanon, 142 N.C. 695, 55 S.E. 797; State v. Moore, 210 N.C. 686, 188 S.E. 421; State v. Myers, 202 N.C. 351, 162 S.E. 764; State v. Harrison, 115 N.C. 706, 20 S.E. 175.
In the Thompson case supra, will be found a critical and comprehensive analysis of the whole subject, with pointed analogy to the instant case; in that case the Court held, that a statement to a defendant, "it would be better to go on and tell us the *633 truth than try to lie about it. * * * it would be better to come on and tell the truth," did not amount to a threat or promise. The expression used by Wyatt, of like character and import, but much milder in expression, did not contain either threat or promise affecting the voluntariness of his confession.
We have not thought it necessary to note all the exceptions to the evidence in the foregoing statement of the case in the order in which they were made, but have given the defendants the benefit of every one of them as made in our study and consideration of the case and do not find prejudicial error. The court below was careful to distinguish where the evidence was competent against one of the defendants and not against the other, and so instructed the jury. And we do not find in this phase of the exceptions any reason to interfere with the result of the trial. Objections to the instructions given the jury not here noted have also been carefully examined and we do not find them meritorious.
We find no error in the trial.
No error.