#### STATE OF NORTH CAROLINA v. FLOYD WILLIAMS

No. 699SC294

(Filed 2 July 1969)

1. Criminal Law § 75— inculpatory statements to law officers — admissibility

The trial court did not err in the admission of inculpatory statements made by defendant to law officers at defendant’s home prior to his arrest, the trial court having found upon voir dire that the Miranda warnings were given to defendant and that the statements were made freely, voluntarily and understandingly, and defendant not having been in custody when the statements were made.

2. Criminal Law §§ 84, 162— admissibility of weapon connected with crime — failure to object — search and seizure

The trial court did not err in the admission of a shotgun taken from defendant’s home by a law officer, where defendant made no objection to the introduction of such evidence and the testimony shows that defendant voluntarily delivered the shotgun to the officer.

S. Criminal Law § 1S2— motion to set verdict aside — appellate review

Motion to set aside the verdict as being against the weight of the evidence is addressed to the discretion of the trial court, and the court’s refusal to grant the motion is not reviewable on appeal.

4. Criminal Law § 127— motion in arrest of judgment

Judgment in a criminal prosecution may be arrested on motion duly made only when some fatal error or defect appears on the face of the record proper.

Appeal by defendant from Bailey, J., at the Regular February 1969 Criminal Session of Franklin Superior Court.

Defendant was charged in a bill of indictment, proper in form, alleging: (1) that on 29 July 1967 he feloniously broke and entered a dwelling house occupied by Clementine Wilson and Earl Alexander with intent to feloniously assault the said Clementine Wilson with a shotgun, and (2) that on said date defendant feloniously assaulted Clementine Wilson with a deadly weapon, to wit: a shotgun, with the intent to kill and murder the said Clementine Wilson, inflicting serious injuries not resulting in death.

Considered in the light most favorable to the State, the evidence tended to show: Defendant and Earl Alexander (Alexander) occupied houses adjoining each other in the Town of Louisburg. Prior to 29 July 1967, defendant had “lived with” Clementine Wilson (Clementine), but on that date she was residing in another section of Louisburg. Around 12:00 on Saturday night, defendant on returning *261to his home overheard Clementine and Alexander talking in the latter’s house. Defendant got his shotgun, forced open the door to Alexander’s house, shot a hole in the floor between Alexander’s feet, turned over the television set, heater and other furniture in the house, and hit Clementine about her head and neck several times with the shotgun. Clementine ran from the house and eventually obtained medical aid and went to the police station where she reported what had happened. Defendant continued to threaten Alexander but finally left and returned to his own home. The next morning Sheriff William Dement went to defendant’s home and, among other things, defendant told the sheriff that he knocked the door down, went into Alexander’s house, shot in the floor, beat Clementine with the shotgun and “that he ought to have killed both of them.” Louisburg Police Chief Earl Tharrington went to defendant’s home that afternoon and talked with defendant, at which time he told Chief Tharrington that he hit Clementine with the shotgun and that “he wished he had killed her when he was hitting her.”

For its verdict, the jury found the defendant guilty of breaking and entering as charged in the bill of indictment but found him not guilty of the felonious assault count. The court imposed an active prison sentence of ten years, to begin at the expiration of a probationary sentence invoked at the same session of the court. Defendant appealed.

Attorney General Robert Morgan and Staff Attorney Carlos W. Murray, Jr., for the State.

W. M. Jolly for defendant appellant.

Bhitt, J.

[1] Defendant assigns as error the introduction into evidence of certain inculpatory statements made by defendant to Chief of Police Tharrington and Sheriff Dement, contending that the safeguards of defendant’s rights as set forth in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, were not provided.

The evidence disclosed that Sheriff Dement went to defendant’s home on Sunday morning around 9:30 or 10:00 after the altercation on Saturday night. He did not place the defendant under arrest but merely talked with defendant in his home on that occasion. Chief Tharrington went to defendant’s home that Sunday evening and there talked with defendant before he was taken into custody. When the solicitor asked witnesses Dement and Tharrington about statements made to them by defendant on those occasions, the trial judge *262excused the jury and conducted a voir dire, following which he found that the Miranda warnings were given to the defendant in each instance and that the statements were made freely, voluntarily and understanding^.

In State v. Inman, 269 N.C. 287, 152 S.E. 2d 192, our Supreme Court held that a statement voluntarily made by defendant to an officer prior to any custodial or interrogatory relationship between them is competent.

In State v. Meadows, 272 N.C. 327, 158 S.E. 2d 638, defendant was charged with murder. The evidence disclosed that the deceased was killed by a shotgun blast during an altercation in the home of the defendant. A police officer went to the scene of the shooting shortly after it occurred and defendant made a statement to the effect that he had shot the deceased. Defendant was not warned as to any of the constitutional rights set forth in Miranda and the question before the Supreme Court was whether, under the circumstances, such warning was necessary. In the opinion by Bobbitt, J., it is said:

> “In Miranda, the majority opinion, delivered by Mr. Chief Justice Warren, states that the constitutional issue decided ‘is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way.’ Repeatedly, reference is made to ‘custodial interrogation.’ Thus, the opinion states: ‘(T)he prosecution may not use statements, whether exculpatory or inculpa-tory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ The opinion stated further: ‘Our decision is not intended to hamper the traditional function of police officers in investigating crime. See Escobedo v. Illinois, 378 U.S. 478, 492, 12 L. Ed. 2d 977, 986, 84 S. Ct. 1758. . . . Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily *263present.!The opinion also states: ‘Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.’ ”

Our Supreme Court held that the Miranda warning was not necessary and that the evidence- was competent.

We hold that the evidence of Officers Dement and Tharrington in the instant case was admissible and the assignments of error relating thereto are overruled.

[2] Defendant assigns as error the taking of a shotgun from defendant’s home by Officer Tharrington and the introduction of the shotgun into evidence. Defendant contends that the officer did not have a search warrant, therefore, the shotgun was illegally obtained and by virtue of G.S. 15-27 was not admissible in evidence.

The record discloses that when the shotgun was identified and offered in evidence, there was no objection by defendant. An objection to the admission of evidence is necessary to present defendant’s contention that the evidence was incompetent. 3 Strong, N.C. Index 2d, Criminal Law, § 162, pp. 114, 115. Furthermore, the testimony was to the effect that the defendant voluntarily delivered the shotgun to the officer, and there was no evidence that the gun was found in the house pursuant to a search of the premises. The assignment of error is overruled.

Three of defendant’s assignments of error relate to the trial judge’s charge to the jury. We have carefully considered the charge and find that it was free from prejudicial error. The assignments of error are overruled.

[3, 4] Defendant’s assignment of error 7 is to the failure of the court to set aside the verdict as being against the greater weight of the evidence and to arrest the judgment. It is well settled in this jurisdiction that a motion to set aside the verdict as being against the weight of the evidence is addressed to the discretion of the trial court, and its refusal to grant the motion is not reviewable on appeal. 3 Strong, N.C. Index 2d, Criminal Law, § 132, pp. 55, 56. It is also well established that a judgment in a criminal prosecution may be arrested on motion duly made when, and only when, some fatal error or defect appears on the face of the record proper. Defendant has hot brought to our attention, nor do we find, any fatal error or defect on the face of the record proper. 3 Strong, N.C. Index 2d, Criminal Law, § 127, p. 43.

We have considered each of the assignments of error brought 'forward and discussed in defendant’s brief, but finding them with*264out merit, they are overruled. Defendant received a fair trial and the sentence imposed was within statutory limits.

No error.

Mallard, C.J., and Parrer, J., concur.