#### STATE OF NORTH CAROLINA v. JAMES ALTON WILLIAMS, CHARLIE EARL BOYD, JR. and THERMAN DAVENPORT

No. 703SC623

(Filed 16 December 1970)

Criminal Law § 76— instruction that confession, if made, was voluntary

The trial court erred in instructing the jury that if they should find from the evidence beyond a reasonable doubt that a confession was made by each defendant, they were “not concerned with whether it was freely and voluntarily made, because the court has ruled it was freely and voluntarily made.”

Appeal by defendants from Parker, /., June 1970 Session of Pitt Superior Court.

The three defendants were jointly indicted and tried for the crime of attempting to burn a dwelling house, a violation of G.S. 14-67. Each defendant pleaded not guilty, was found guilty by the jury, and appealed from the sentence imposed.

*184 Attorney General Robert Morgan by Staff Attorneys Howard P. Satisky and Walter Ricks III, for the State.

Clifton W. Everett, Jr., for defendant appellants, James Alton Williams and Charlie Earl Boyd, Jr.

James T. Cheatham for defendant appellant, Therman Davenport.

PARKER, Judge.

After a voir dire hearing, the trial court allowed in evidence testimony of a deputy sheriff concerning extrajudicial confessions which each defendant had made while in the presence of the others. In its charge the court instructed the jury that if they should find from the evidence beyond a reasonable doubt that the confession was made, they were “not concerned with whether it was freely and voluntarily made, because the court has ruled it was freely and voluntarily made.” In this instruction the court committed error.

“It is error for the judge to instruct the jury that he has ruled or determined that the statements, if any, attributed to defendant, were made by defendant freely and voluntarily.” State v. Logner, 269 N.C. 550, 153 S.E. 2d 63. For error in the charge, defendants are awarded a

New trial.

Chief Judge Mallard and Judge Graham concur.