#### STATE v. ERNEST BROOKS, JR.

(Filed 12 December, 1945.)

1. Appeal and Error §§ 37b, 37e: Evidence § 27: Criminal Law § 48c—

The admissibility of evidence, when challenged, is, *imprimis,*a question for the trial court. Where its admission primarily depends upon a determination of fact, the court of review is ordinarily bound by the finding of the trial judge when it is supported by evidence, and will not disturb that finding or ruling admitting the evidence unless there appears some error of law or legal inference.

2. Criminal Daw § 33—

The competency of an alleged confession is a preliminary question for the trial court, to be determined, after hearing evidence of the circumstances under which the confession was given, both for the State and for the defendant.

3. Criminal Daw §§ 53a, 81c—

In a criminal prosecution in a capital case, where the trial judge calls back the jury especially to correct an error in his original charge; and thereupon gives the jury supplemental instructions, calling their attention to the mistake, and correctly giving them the rule on the point involved, such supplemental instructions have all the more weight and there is no reversible error.

Appeal by defendant from *Frizzelle, J.,*at March Criminal Term, 1945, of New HaNOver.

The defendant, a young Negro fourteen or fifteen years of age, was convicted under a bill of indictment charging him, in two counts, of rape *663upon tbe person of Mrs. Gr. Y. Parker and of burglary in breaking and entering tbe dwelling bouse then occupied by ber, in tbe nighttime, with tbe intent to commit tbis felony.

Many of tbe details are unprintable, but tbe evidence necessary to an understanding of tbe decision upon tbe appeal may be summarized as follows:

Tbe Parkers, husband and wife, and a daughter seven years old, lived as tbe sole occupants of a five room bouse in Wilmington. Tbe bouse bad a living room, two bedrooms, a dining room, kitchen and bath. Tbe husband was away on tbe night of tbe occurrence, working at tbe shipyard, and Mrs. Parker and young child were alone in tbe bouse. She bad been sewing, and a little after midnight cut off tbe radio and went to bed. She was eight months gone in pregnancy, was lying in bed in some discomfort and unable to sleep, and alert to noises. She beard a key turn in tbe lock of tbe front door, which she bad locked before retiring. Thinking it was ber husband who bad returned because of sickness, or some other reason, she did not get up, but lay listening. She beard tbe sound of tbe French doors between tbe living room and dining room being opened, and called “Who is that?” and someone said, “It is me.” Mrs. Parker said, “Who is me?” and got tbe reply, “Jake,” and tbe person, whom she later identified as tbis defendant, pushed tbe bedroom door open, and with violence and threats to kill Mrs. Parker and ber little girl who was in tbe room, overcame ber resistance and accomplished tbe act as far as necessary to complete tbe crime. However, be became frightened at tbe cries of tbe little girl and left without fully completing tbe sexual act.

Mrs. Parker immediately called ber neighbors from ber window, called up ber husband, who was working at tbe shipyard, and when be came, tbe police were called. Mrs. Parker detailed tbe circumstances to tbe policeman, Murray, minutely describing tbe defendant. Murray testified in corroboration of tbe witness, stating that she bad described tbe clothing of ber assailant, tbe physical appearance of bis face and eyes and other characteristics, and said she was satisfied that she could recognize bis eyes. She gave a detailed statement of what occurred that night; said that tbe boy was dressed in a pair of dark trousers, a dirty jacket, similar to a soldier’s jacket, and bad on a toboggan, giving other details corresponding with ber testimony on tbe trial.

Tbe occurrence was after midnight, and on that same morning Murray took Mrs. Parker through tbe colored section of tbe city to see whether tbe assailant could be found and identified. Finally, tbe defendant was seen walking along tbe sidewalk, and Mrs. Parker screamed, “There be is,” becoming much agitated and hysterical. ■ On account of Mrs. Par*664ker’s condition, Murray did not want to bring Mrs. Parker nearer to the boy, but called other officers who followed and took him in charge, and he was carried to the office of Superintendent Pales for examination. He there confessed to the crime, going over in detail all the circumstances, and stating that he was frightened away by the crying of the little girl.

Upon trial of the case the voluntariness of this confession was challenged, and before admitting it in evidence, the jury was sent out and the question of its voluntariness was taken up by the court and evidence heard. On this inquiry the evidence was substantially as follows:

The witness Murray testified that prior to the confession neither he nor any person in his presence made any threat on or offered defendant any reward or leniency in the event he would make a statement, and that there was nothing done, of any nature, to force him to make it. That while Mr. Fales was beginning the questioning witness was outside, but was inside when the confession was made.

H. E. Fales, Superintendent of New Hanover County Bureau of Investigation, in whose office the confession was made, testified that “he did not offer the defendant any reward or hope of reward, or promise him any leniency for telling the truth about the matter; and that no one in his presence forced the defendant to make any statement.” He further testified:

“I talked with the defendant about the crime. I told him he didn’t have to say anything. I asked him how old he was, what school he went to, did he go to Sunday School, and if he had done the crime. He didn’t know anything about it at first, and then I showed him the key. I searched him and found the key. I found the key in his watch pocket. It was a regular house key. After I found the key, I talked on a little bit and I said, Hid you unlock the door with this key?’ and he said, £No, it was not locked,’ and then he told me this story. He did admit he turned off the light, and I told him there were fingerprints, but I did not tell him they were his fingerprints. I told him this for the psychological effect. He did not come through with anything until I found the key. I asked him if he would go out with us and point out the alleged scene of the crime, and he said he would. He directed us to the proper street and up to this house, and when we got to the corner I said, ‘Where is the house ?’ and he said, ‘Right over there,’ and he went to the house and I said, ‘Just what did you do ?’ and he showed us, and he went up to the front porch and said the door was not locked, and how he went through the French doors, and then he went in the bedroom and showed us where the woman and the girl were lying on the bed. Frankly, I don’t remember whether the statement was signed before we went or after we came back.”

*665Tbe defendant testified substantially as follows:

“There were no officers at tbe exact time I came in there, but later Mr. Fales and Mr. Wolfe and Mr. Murray came in and two more policemen, and those other policemen were sitting there talking to me, and he told me he had my fingerprints and if I would come on and tell the truth it would be easier.”

He testified that he had a key on him which Mr. Fales found and that Mr. Fales asked him about it; that he told Mr. Fales that his father kept tools and things on a shelf, and he got it from there. Mr. Fales suggested that he go down there and give a demonstration — said “did I want to go down there and show them the way to the house and everything”; that he was not told he didn’t have to go; that after Mr. Fales told him he had his fingerprints, he thought he had to confess the crime.

“Q. Did he'say anything about making it easier on you if you went through it?

“A. When I first came to the police station they said they had my fingerprints, and if I would tell the truth it would be a whole lot easier on me.”

Upon the conclusion of this inquiry,' the court found that the alleged confession was “given or obtained without any inducement of hope or fear, and that the same was the free and voluntary confession, admissible in evidence”; and the jury having been returned to the court room and the trial resumed, admitted the evidence of the confession over defendant’s objection and exception.

The witness Murray, recalled, testified that the defendant said to him that he did go into the white lady’s house and have sexual relations with her, but did not complete his desire because the little girl, who was there on the bed, started crying and he got afraid, picked up his trousers and went out. That defendant said he was around the Eecreation Center at Tenth and Castle Streets and decided to go up into the white section and have sexual relations with a white woman. “I said, 'You mean you had that in mind before you left?’ and he said, ‘Yes.’ ” He then, according to this testimony, detailed the circumstances as they had been testified to by Mrs. Parker, who at that .time had made no statement in his presence. That defendant voluntarily went with the officer and pointed out the house he had entered. That having done so, he asked the officer if he wished him to sit there on the wall and pull off his shoes as he did that night, and was told that it was not necessary. That he then went on in front of the officer, entered the house, pushed open the French doors and said, “This is the bedroom to the right.” That he then pointed out the various things in the bedroom as they were on that night, showing where he had placed his hands upon the bed. That the defendant told *666tbe officers be was wearing tbe same toboggan on tbe nigbt of tbe occurrence tbat be wore wben brought to tbe police office; and, asked if be bad a brown jacket, be said be did and tbat it was at tbe laundry. Tbat tbe policeman found tbe jacket there, and defendant stated tbat be bad carried it to tbe cleaners next day. In this clothing they found a key.

N. J. Wolfe, a member of tbe police force, corroborated this statement.

Tbe defendant’s mother testified: “He is fifteen; be became fifteen on December 31, 1945.”

After charging tbe jury, and after they bad retired to tbe room to consider their verdict, tbe judge called them back and supplemented bis charge as follows:

“Gentlemen of tbe Jury: At tbe conclusion of tbe charge I bad a suspicion and a feeling tbat I bad committed error with respect to tbe instruction relating to tbe second count, and I asked Mr. McEwen to read back to me tbat portion of tbe charge, which be did, which confirmed tbe impression which I bad.

“I instructed you tbat under tbe second count you could render only one of two verdicts, to wit, guilty of burglary in tbe first degree, or not guilty, though later in tbe charge stating to you tbat by reason of tbe provision in tbe statute enacted by tbe Legislature of 1941, amending tbe law as it had theretofore existed, you were vested with an election notwithstanding tbe fact you found tbe facts constituted burglary in tbe first degree to render a verdict of guilty of burglary in tbe second degree.

“Tbe defendant, by reason of tbe law as tbe Court has instructed you, bad removed from him the right upon tbe evidence in this case, and tbe law applicable thereto, to insist upon a verdict of guilty of burglary in tbe second degree under tbe facts of tbe case, and I was afraid it bad caused some confusion and misunderstanding in your minds, and for tbat reason I am calling you back to try to eliminate any confusion tbat may have been created, and to make it perfectly clear to you, and I now charge you, tbat under this second count of burglary you may render one of three verdicts, to wit, guilty of burglary in tbe first degree; guilty of burglary in tbe second degree, or, not guilty, and tbat you can render a verdict of guilty of burglary in tbe second degree in tbe exercise of your sound discretion and tbe election given you under tbe amendment even though you may be satisfied beyond a reasonable doubt from tbe evidence in this case, and may find facts from tbat evidence upon which, but for tbat proviso or amendment, you would find a verdict of guilty of burglary in tbe first degree.”

Tbe case was submitted to tbe jury and resulted in conviction of tbe defendant on both counts. Counsel for tbe defendant moved to set aside tbe verdict because of errors committed during tbe course of tbe trial, *667wbicb motion was refused, and tbe defendant excepted. Judgment imposing tbe death penalty was pronounced, to wbicb tbe defendant objected, excepted, and appealed, assigning errors.

*Attorney-General McMullan and Assistant Aitorneys-General Rhodes, Moody, and Tucker for the State.*

*C. G. Gates for defendant, appellant.*

Seawell, J.

1. Tbe admissibility of evidence, wben challenged, is, *imprimis,*a question for tbe trial court. Where its admission preliminarily depends upon a determination of fact, tbe court of review is ordinarily bound by tbe finding of tbe trial judge wben it is supported by evidence, and will not disturb that finding or ruling admitting tbe evidence unless there appears some error of law or legal inference.

Pertinent to confessions, it is observed in *S. v. Grass,*223 N. C., 31, 33, 25 S. E. (2d), 193:

> “Tbe competency of an alleged confession is a preliminary question for tbe trial court, *S. v. Andrew,*61 N. C., 205, to be determined in tbe manner pointed out in *S. v. Whitener,*191 N. C., 659, 132 S. E., 603, and tbe court’s ruling thereon is not reviewable on appeal, unless accompanied by some imputed error of law or legal inference. *S. v. Manning,*221 N. C., 70, 18 S. E. (2d), 821.” See, also, *S. v. Hairston,*222 N. C., 455, 23 S. E. (2d), 885; *S. v. Rogers,*216 N. C., 731, 6 S. E. (2d), 499.

Tbe trial judge was careful to preserve tbe rights of tbe youthful prisoner, and tbe record discloses no reason why tbe Court here should disturb bis findings and conclusion, or bis ruling admitting tbe evidence of tbe confession and tbe acts of tbe defendant upon visiting tbe scene of tbe alleged crime — if included in tbe objection and challenge of tbe defendant’s counsel above noted. Tbe ruling admitting tbe evidence must be sustained.

2. Tbe defendant did not cause tbe whole charge to be sent up, nor indeed tbe specific language used in that portion of tbe charge to wbicb be desires to direct our attention as erroneous. Tbe exception might therefore, for sound reasons, be dismissed as ineffectual. We entertain it only because of tbe gravity of tbe crime of wbicb defendant was convicted. Put, supposing tbe supplemental instruction given by tbe judge by way of correction sufficiently reflects tbe charge as it theretofore stood, we cannot see bow tbe defendant was prejudiced thereby. In fact, as tbe jury were called back especially for this correction, tbe rule last given, and correctly given, bad all tbe more-weight. *S. v. Rogers, supra,*p. 732; *S. v. Baldwin,*178 N. C., 693, 100 S. E., 345.

*668We have not only given consideration to the two assignments of error brought forward in the argument and brief, but we have carefully examined the whole record and find nothing which would justify us in disturbing the result of the trial. We find

No error.