{
  "id": 8550295,
  "name": "STATE OF NORTH CAROLINA v. FLOYD DOUGLAS BRAY",
  "name_abbreviation": "State v. Bray",
  "decision_date": "1978-06-20",
  "docket_number": "No. 7828SC15",
  "first_page": "43",
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    "name": "North Carolina Court of Appeals"
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      "year": 1969,
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    {
      "cite": "275 N.C. 575",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8559246
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          "page": "582"
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  "last_updated": "2023-07-14T22:58:37.287571+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges CLARK and ERWIN concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. FLOYD DOUGLAS BRAY"
    ],
    "opinions": [
      {
        "text": "BRITT, Judge.\nDefendant contends the trial court committed prejudicial error in giving the following instruction to the jury: \u201cThere is evidence which tends to show that the defendant confessed that he committed the crime charged in this case.\u201d We think the contention has merit in view of the evidence in this case.\nDefendant argues that while he admitted firing the gun that killed decedent, that he did not \u201cconfess\u201d murdering or otherwise unlawfully taking the life of decedent. On the contrary he argues, among other things, that his conduct was justified in that he was acting in defense of himself and his place of habitation.\nThe State argues that the term \u201cconfession\u201d has been defined by our Supreme Court as \u201c[a]ny extra-judicial statement of an accused ... if it admits defendant\u2019s guilt of an essential part of the offense charged\u201d; State v. Williford, 275 N.C. 575, 582, 169 S.E. 2d 851 (1969); and that since defendant admitted firing the weapon that killed decedent, an essential part of the offense charged, the court did not err in referring to the admission as a confession.\nWe do not find this argument persuasive for the reason that the definition stated in Williford has to be considered in the context of that case. There the court was passing upon the admissibility of evidence relating to an incriminating statement made by the defendant. The defendant contended that the statement was not knowingly and voluntarily made. The State contended that since the statement related only to a part of the alleged crime, it was not a confession. In that context the court stated the definition quoted above and held that absent proper findings that the incriminating statement was knowingly and voluntarily made by the defendant, evidence relating to it was inadmissible.\nAs authority for the definition, the court in Williford cited State v. Hamer, 240 N.C. 85, 81 S.E. 2d 193 (1954). A review of Hamer reveals that the court in that case was addressing the question of admissibility of evidence relating to an incriminating statement.\nAfter giving the challenged instruction in the case at hand, the court charged: \u201cIf you find that the defendant made that confession, then you should consider all of the circumstances under which it was made in determining whether it was a truthful confession and the weight you will give to it.\u201d In this context, we think the terms \u201cconfess\u201d and \u201cconfession\u201d must be considered in their broader and more usually accepted sense rather than employing the definition used in Williford and Hamer. In Black\u2019s Law Dictionary, Fourth Edition, p. 368, one of the definitions given for confess is \u201c[t]o admit the truth of a charge or accusation\u201d. Confession is defined as: \u201c[a] voluntary statement made by a person charged with the commission of a crime or misdemeanor, communicated to another person, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act or the share and participation which he had in it.\u201d Ibid at 369.\nThe instruction complained of was given in the early part of the charge as the court was instructing on various legal principles. While we are certain that the learned trial judge did not intend to express an opinion on the evidence, we think that by using the terms \u201cconfessed\u201d and \u201cconfession\u201d he inadvertently did so, in violation of G.S. 1-180. We think it is very likely that the jury received the impression that the court felt that the evidence showed that defendant had \u201cconfessed\u201d, that he had admitted the truth of a charge against him.\nWe hold that the error was sufficiently prejudicial to entitle defendant to a new trial. We refrain from discussing the other assignments of error argued in defendant\u2019s brief as they likely will not recur upon a retrial of the case.\nNew trial.\nJudges CLARK and ERWIN concur.",
        "type": "majority",
        "author": "BRITT, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General Charles J. Murray, for the State.",
      "J. Lawrence Smith for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. FLOYD DOUGLAS BRAY\nNo. 7828SC15\n(Filed 20 June 1978)\nCriminal Law \u00a7 114.4\u2014 jury instructions \u2014 evidence that defendant confessed \u2014 expression of opinion\nIn a prosecution for second degree murder where defendant admitted firing the gun that killed decedent but contended that he was justified in acting in defense of himself and his place of habitation, the trial court expressed an opinion in violation of G.S. 1-180 when the court instructed that \u201cthere is evidence which tends to show that the defendant confessed that he committed the crime charged in this case.\u201d\nAPPEAL by defendant from Howell, Judge. Judgment entered 10 December 1976 in Superior Court, BUNCOMBE County. Heard in the Court of Appeals 27 April 1978.\nUpon a plea of not guilty defendant was tried on a bill of indictment charging him with the murder of John Matt Rollins on 17 August 1976. Evidence presented by the State tended to show:\nAround midnight on 16-17 August 1976, Jimmy Swink, deceased and two others went to a lounge in rural Buncombe County for the purpose of breaking into the place. Swink and deceased tried to enter the building at several places and eventually succeeded in prying open the front door. Their two accomplices served as lookouts.\nAs Swink and deceased entered the vestibule of the lounge, a gun was fired from inside the building and Swink ran. A second shot was fired and some five minutes later Swink returned to the building where he saw deceased lying just inside the lounge with blood on his shoulder. Deceased had no weapon.\nDeputy Sheriff Wallen arrived at the lounge around 1:25 a.m. and saw deceased lying in the foyer area and defendant standing near him with a shotgun. After placing defendant in the police car, the officer examined deceased, found a wound in his back and no pulse. Defendant made the following statement to the officer: \u201cI was in the back near the pool tables cleaning up, when I heard a noise at the front door. I went up there and these dudes were breaking in. I hollered and told the boys to freeze, and they started running. I told them again and fired a warning shot. They kept running, and I told them again, and I shot that one.\u201d\nDefendant\u2019s evidence tended to show: He had been doing repair work at the lounge and had been allowed to spend the nights there because he did not have transportation to and from his home. Defendant was not staying in the lounge as a guard although there had been several recent break-ins. On the night in question he was about to go to bed when he heard noises like someone breaking in. He first heard noises at the back of the building, then on the side and finally at the front door. He became frightened and went looking for a gun in the lounge office. Lighting in the lounge was extremely dim but he finally obtained the gun. As he heard the burglars enter the front door, he instinctively fired the gun twice without taking aim. He then telephoned the sheriff\u2019s office and asked for assistance.\nThe trial judge instructed the jury that they might return a verdict of second-degree murder, voluntary manslaughter, involuntary manslaughter, or not guilty. The jury returned a verdict of guilty of involuntary manslaughter and from judgment imposing a prison sentence of not less than three nor more than five years, defendant appealed.\nAttorney General Edmisten, by Assistant Attorney General Charles J. Murray, for the State.\nJ. Lawrence Smith for defendant appellant."
  },
  "file_name": "0043-01",
  "first_page_order": 71,
  "last_page_order": 75
}