STATE
v.
Michael Lamar MITCHELL.
No. 666.
Supreme Court of North Carolina.
June 20, 1967.*98 T. W. Bruton, Atty. Gen., Ralph Moody, Deputy Atty. Gen., for the State.
J. Duane Gilliam, Fayetteville, for defendant.
SHARP, Justice.
Defendant's first assignment of error is that the court erred in overruling defendant's plea of former jeopardy. This assignment is without merit. We have repeatedly held:
"When, in either a post-conviction hearing or a habeas corpus proceeding, at the prisoner's request, the court vacates a judgment against him and directs a new trial, the prisoner waives his constitutional protection against double jeopardy, and he may be tried anew on the same indictment for the same offense. In such case, a plea of former jeopardy will avail him nothing. State v. Hollars, 266 N.C. 45, 145 S.E.2d 309; State v. Gainey, 265 N.C. 437, 144 S.E.2d 249; State v. Merritt, 264 N.C. 716, 142 S.E.2d 687; State v. White, 262 N.C. 52, 136 S.E.2d 205."
State v. Case, 268 N.C. 330, 332, 150 S.E.2d 509, 511.
By Assignment of Error No. 6, defendant challenges the admissibility of Detective Evans' statement to the jury that at Godwin Realty Company he found a billfold which Yeatts identified as his. Assignment of Error No. 7, based on Exceptions 11 and 12, is that the court *99 erred in refusing to strike from the evidence Yeatts' statement that somebody had told him defendant had admitted taking his pocketbook. These assignments of error must be sustained.
Yeatts' statement was rank and admitted hearsay. State v. Lassiter, 191 N.C. 210, 131 S.E. 577; Stansbury, N.C. Evidence § 138 (2d Ed., 1963). When considered in conjunction with the evidence of Detective Evans, its prejudicial effect is apparent. Evans testified, without objection, that he first saw defendant at Godwin Realty Company early in the morning of 9 April 1964. Thereafter, over objection, he testified before the jury that at Godwin Realty Company he found a billfold which Yeatts later identified as his. Although the jury did not know that defendant had told Evans where to find Yeatts' pocketbook, it is inconceivable that the jury did not attribute the finding of Yeatts' pocketbook at Godwin Realty Company to defendant's presence there. On cross-examination, Yeatts' positive identification of defendant as the man who had robbed him was considerably shaken. To reinstate the identification, the State had a pressing need to connect defendant with Yeatts' pocketbook. This was donebut unfortunately it was done by incompetent evidence.
The court properly excluded the statement which defendant made to Detective Evans, because the investigating officer failed to warn him of his constitutional rights prior to interrogating him. State v. Ross, 269 N.C. 739, 153 S.E.2d 469; Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. By the same token, he should also have excluded the evidence that the officers found the pocketbook at Godwin Realty Company, because they found it in consequence of the incompetent statement. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441; Walder v. United States, 347 U.S. 62, 74 S. Ct. 354, 98 L. Ed. 503; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319, 24 A.L.R. 1426. In Miranda v. State of Arizona, supra, the Supreme Court of the United States said with reference to an individual who had been taken into custody by law enforcement officers:
"He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. * * * After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him." (Emphasis added.)
Id., 384 U.S. at 479, 86 S. Ct. at 1630, 16 L.Ed.2d at 726.
The State argues that the error in admitting the incompetent evidence was cured by the judge's instruction to the jury not to consider it. We are constrained to hold, however, that the prejudicial effect of this evidence was not subject to withdrawal. It seems probable that the jury's verdict was based in substantial part on this evidence, notwithstanding the court's instruction that they should disregard it. State v. Frizzelle, 254 N.C. 457, 119 S.E.2d 176; State v. Aldridge, 254 N.C. 297, 118 S.E.2d 766; State v. Choate, 228 N.C. 491, 46 S.E.2d 476; 1 Strong, N.C.Index, Criminal Law § 91 (1957).
For the errors indicated, there must be a
New Trial.