{
  "id": 8595826,
  "name": "STATE v. CHARLES FAIN",
  "name_abbreviation": "State v. Fain",
  "decision_date": "1939-09-20",
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  "first_page": "157",
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    "id": 9292,
    "name": "Supreme Court of North Carolina"
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  "last_updated": "2023-07-14T17:26:30.134660+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. CHARLES FAIN."
    ],
    "opinions": [
      {
        "text": "Stacy, C. J.\nTbe scene of the crimes of which the defendant has been convicted was a hospital in Murphy, Cherokee County; the time before dawn or about 3:30 a.m., 29 January, 1939.\nThe first count in the indictment is directed to the time, manner and intent with which the defendant entered the hospital; the second is addressed to his attack upon a nurse employed therein. S. v. Allen, 186 N. C., 302, 119 S. E., 504. The details of the offenses are not material to a proper solution of. the questions of law presented by the appeal. It is enough to say the evidence is so full and complete that its sufficiency is not challenged by demurrer or motion to nonsuit. It supports the verdict on both counts. Indeed, it may not be amiss to call it compelling.\nThe defendant offered no evidence before the jury. His only challenges are: First, to the competency of his written confession as evidence ; second, to the court\u2019s comment upon its voluntariness; and, third, to the court\u2019s instruction to the jury not to consider a verdict of burglary in the second degree.\nIt is the established procedure with us that the competency of a confession is a preliminary question for the trial court, S. v. Andrew, 61 N. C., 205, to be determined in the manner pointed out in S. v. Whitener, 191 N. C., 659, 132 S. E., 603, and that the court\u2019s ruling thereon will not be disturbed, if supported by any competent evidence. S. v. Moore, 210 N. C., 686, 188 S. E., 421. No error has been made to appear in the admission of the confession in evidence. S. v. Alston, 215 N. C., 713. Hence, the defendant\u2019s first exception is not sustained.\nThe second exception is directed to the court\u2019s comment upon the defendant\u2019s confession as evidence, namely, \u201cwhich the court' has held to be competent in this case because it appears that the confession was taken without hope of reward or without any extortion or fear, and that it was fairly taken, after the prisoner had been duly warned of his rights.\u201d This did not constitute an expression of opinion, such as is prohibited by C. S., 564, for the judge said no more than that the confession had been duly admitted in evidence, and he gave the reasons for admitting it. In this respect, the case of S. v. Davis, 63 N. C., 578, would seem to be \u201cstraight up and down\u201d with the instant case.\nThe third exception is to the court\u2019s instruction to the jury that \u201cthere is no evidence in this case of burglary in the second degree and you need not consider that offense in your deliberations.\u201d It is provided by C. S., 4641, that upon an indictment for burglary in the first degree, the jury may render a verdict of burglary in the second degree, \u201cif they deem it proper so to do.\u201d The pertinent decisions are to the effect that this statute does not, as a matter of law, require or authorize the trial court to instruct the jury that such a verdict may be rendered independently of all tbe evidence. S. v. Morris, 215 N. C., 552. It bas not been beld, however, so far as we are aware, that the trial court may withhold such a verdict from the jury\u2019s consideration. S. v. Ratcliff, 199 N. C., 9, 153 S. E., 605. The exception is not material in the instant case as it does not go to the validity of the verdict on the second count, which is also a capital offense. Hence, for this reason, we make no definite ruling upon the point.\nOur conclusion is, that the record contains no exceptive assignment of error which should be sustained. The verdict and judgment will be upheld.\nNo error.",
        "type": "majority",
        "author": "Stacy, C. J."
      }
    ],
    "attorneys": [
      "Attorney-General McMullan and Assistant Attorneys-General Bruton and Patton for the State.",
      "D. H. Tillitt and G. B. Hyde for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE v. CHARLES FAIN.\n(Filed 20 September, 1939.)\n1. Criminal Law \u00a7 33\u2014\nThe competency of a confession is a preliminary question for the trial court, and its ruling thereon will not be disturbed if supported by competent evidence.\n2. Criminal Law \u00a7 50a\u2014\nThe comment of the trial court upon the admission of defendant\u2019s confession in evidence that the court had held the confession competent because it appeared that it was taken without hope of reward or without extortion or fear, after defendant had been duly warned of his rights, amounts to no more than stating that the confession had been admitted in evidence and the reasons for admitting it, and will not be held for error as an expression of opinion by the court prohibited by C. S., 564.\n3. Criminal Law \u00a7 81c\u2014\nWhen defendant is charged with two separate capital offenses, and there is plenary evidence to support the jury\u2019s verdict of guilty on each count, defendant\u2019s exception to the court\u2019s failure to submit the question of his guilt of a lesser degree of one of the crimes charged is immaterial, since it does not affect the validity of the verdict of guilty as to the other crime.\nAppeal by defendant from Nettles, J., at March-\u00c1pril Term, 1939, of CHEROKEE.\nCriminal prosecution tried upon indictment charging the defendant with burglary in the first degree, and with rape.\nYerdict: Guilty of burglary in the first degree as charged in the first count, and guilty of rape as charged in the second count in the bill of indictment.\nJudgment: Death by asphyxiation.\nThe defendant appeals, assign errors.\nAttorney-General McMullan and Assistant Attorneys-General Bruton and Patton for the State.\nD. H. Tillitt and G. B. Hyde for defendant."
  },
  "file_name": "0157-01",
  "first_page_order": 223,
  "last_page_order": 225
}