Opinion
Filed 4 May, 1966.
1. Criminal Law 195 — Exceptions not set out in the brief and in support of which no argument or authority is stated are deemed abandoned. Rule of Practice in the Supreme Court No. 28.
2. Criminal Law 71 — Evidence held to support finding that confession offered in evidence was freely and voluntarily made. Testimony of an officer that defendant did not request counsel and was not refused the right to communicate with a relative and counsel, that defendant was advised of his right not to make any statement, and that the officer made no promise and offered no threat, coercion, or duress, and that defendant then made the statement offered in evidence, held to support the court's findings and conclusion that the confession was freely and voluntarily made, notwithstanding defendant's testimony that a prior confession made to other officers was made because defendant was threatened and the officers would not allow him to call a relative and refused to let him talk to a lawyer and was promised probation if he made the statement, the prior confession not being entered in evidence and the officers to whom it was made not being examined.
APPEAL by defendant from Hall, J., November 1965 Session, WAKE Superior Court.
T. W. Bruton, Attorney General, Millard R. Rich, Jr., Assistant Attorney General, for the State.
Robert T. Hedrick Attorney for the defendant appellant.
MOORE, J., not sitting.
PARKER, C.J., dissenting.
Defendant was tried under a bill of indictment charging breaking and entering with intent to steal, larceny and receiving stolen goods.
The State's evidence was to the effect that on or about the first day of June, 1953, Brawley Jewelry Company of Raleigh, North Carolina, was broken into and 119 to 129 watches, valued at around $5,400.00, were taken. The defendant was apprehended about one month later in Bexley, Ohio, and was extradited to North Carolina for trial. Defendant was convicted, sentenced and served a portion of that sentence but escaped December 7, 1953. He was charged with committing another offense in Ohio, at which time he let it be known that he was an escapee from North Carolina. Upon his return here on November 25, 1964, he was granted a new trial under G.S. 15-217.
Captain Goodwin testified with respect to the details of the crime as told to him by the defendant: that the defendant had arrived in Raleigh some 10 days prior to June 1st, 1953, and had taken a room there; that he had visited Brawley Jewelry Company on two occasions prior to the break in; that on the day of the break in, he went in a bank building and went on the roof and waited until nighttime before cutting a hole in the bathroom roof of the Jewelry Company and gaining entry thereto; that he then filled a paper bag with watches from the display counters and left by the same way; that he then traveled by bus to Wilson, North Carolina, Rocky Mount, North Carolina, and Norfolk, Virginia, where he began selling the watches; that from Norfolk, Virginia, he traveled to several other cities selling watches until he was apprehended in Bexley, Ohio.
The defendant challenged the admissibility of his alleged confession but, the judge upon voir dire found as a fact that all the essentials necessary to constitute a voluntary confession were present. His findings are further considered in the opinion.
Defendant put on no evidence except during the voir dire to show that he had not made any statement to the police.
Upon being found guilty of breaking and entering and larceny, and sentenced, defendant appeals, assigning error.
While the case on appeal contains eight assignments of error, the defendant in his brief brings forth only Exception No. 1, which relates to the voluntariness of his alleged confession, and 3, 4 and 8 which he groups, and which relate to his motions for nonsuit and his formal exceptions to the judgment. The remaining exceptions are not set out in the brief and no argument or authority is stated in regard to them. Under Rule 28 of the Rules of Practice in the Supreme Court, 254 N.C. 810, they are deemed abandoned. Nevertheless, we have given them consideration and find them without merit.
In response to the defendant's claim, represented by Exception No. 1, that his alleged confession was not voluntary, the trial judge excused the jury and made a full investigation as to the circumstances under which it was made. It had been reported to the officers that he had made a confession in Ohio which they discussed with him and which he did not deny. The officer, Captain R. E. Goodwin of the Raleigh Police Department, testified that he had warned the prisoner of all of his rights and stated that he had offered no promises, inducements or threats to obtain the confession. The defendant denied having made a confession in Ohio and stated that the confession was made in North Carolina to Captain Goodwin because "I was threatened and they wouldn't let me call my sister who lived in Wilson, North Carolina, and they refused to let me talk to a lawyer * * * and they told me that if I would make a confession they would get me out on probation. Mr. Goodwin did not say that. It was Mr. Bowers, I believe, who promised this to me, but it has been so long I do not remember it." The trial judge made full findings of fact to the effect that the defendant made no request for counsel; that he was not denied the right to communicate with counsel or friends, was otherwise advised of his rights, and his statement was made freely and voluntarily, without any promise, threat, undue influence, coercion or duress. The record amply supports the findings of the Judge and the exception is not sustained.
The defendant has a long record of violations of the law, starting in 1944, having been convicted in Kentucky, Virginia, New Mexico and Texas, of crimes similar to the one here charged. It is not likely that one with his long experience with the courts would believe that a police officer, rather than the judge, would determine the question of probation.
The evidence in support of the charge is set forth in the statement of facts. No evidence was offered by the defendant. He cannot successfully contend that the evidence is not sufficient to prevail upon the motion to nonsuit, and that being true, his formal exception to the judgment is without merit.
No error.
MOORE, J., not sitting.