#### STATE v. F. C. BONNER and JUNIOR FOWLER.

(Filed 2 December, 1942.)

1. Criminal law § 33—

In a prosecution for murder against several defendants, alleged confessions, separately made by defendants, are competent only against tbe defendant making tbe confession and are incompetent against any co-defendant, wbo was not present at tbe time tbe alleged confession was made and who did not by word or conduct acquiesce therein.

2. Criminal Law § 47—

In criminal prosecutions for murder, upon separate indictments against several defendants, consolidated and tried together, it was prejudicial error to deny motions for separate trials, tbe State relying solely for conviction upon alleged separate confessions, incriminating defendants not present and wbo bad not acquiesced therein.

Appeal by defendants E. C. Bonner and Junior Fowler from Thompson, J., at May Term, 1942, of Columbus.

Criminal prosecutions upon separate bills of indictment, consolidated and tried together, charging each defendant with the murder of Ira L. Godwin.

The record discloses that aboipt ten o’clock on night of 4 April, 1942, Ira L. Godwin was found in his filling station near Whiteville, North Carolina, lying in a pool of blood, and that he was dead; that appellants, E. C. Bonner and Junior Fowler, and two others, Lonnie Melton Todd and Joe McDaniel were charged individually and in separate bills of indictment with the murder of Godwin; and that motions of appellants for separate trials were overruled, and “defendants excepted.”

The case on appeal further discloses that, upon the trial of the above named four persons charged with the murder of Ira L. Godwin, the

*345State offered as evidence and relied upon alleged confessions of defendants F. C. Bonner and Lonnie Melton Todd, separately made, and of Junior Fowler and Joe McDaniel, jointly made; tbat in the alleged confession of F. C. Bonner incriminating statements were made against the defendants Fowler and Todd; in the alleged confession of Lonnie Melton Todd, incriminating statements were made against Bonner and Fowler; and in the alleged joint confession of Fowler and McDaniel, incriminating statements were made against Bonner and Todd; that the court overruled the objections of these appellants, and they excepted; and that, thereupon, “the court here instructed the jury -that they should not consider these confessions except as against the individuals making them; that they should not be considered as against any other defendant not making the particular confession, unless they should further find any other defendant was present at the time.”

The defendants did not testify and offered no evidence on the trial.

The defendant Joe McDaniel, who allegedly made a joint confession with defendant Junior Fowler, was acquitted. Defendants F. 0. Bonner and Junior Fowler and Lonnie Melton Todd were each convicted of murder in the first degree. Upon such verdict judgments were pronounced, in which, as relates to them, the appellants, F. C. Bonner and Junior Fowler, were each condemned to death by asphyxiation “on the day prescribed by law,” and each appeals to the Supreme Court and assigns error.

Attorney-General McMullan and Assistant Attorneys-General Patton and Rhodes for the State.

W m. F. J ones for defendant, appellant, Bonner.

E. M. Toon and Detlaiu Sanderson for defendant, appellant, Fowler.

Winborne, J.

Upon the record on this appeal the appellants contend stressfully, and we think with propriety, that each of them was prejudiced by the denial of their motions for separate trials. "While at the time the motions were made and overruled, it doubtless did not appear that the State, in order to connect defendants with alleged murder of Ira L. Godwin, relied upon alleged confessions separately made by the defendants, which would be competent as evidence only against the defendant making the confession, and incompetent as evidence against any codefendant who was not present at the time the alleged confession was made, and who did not by word or conduct acquiesce therein. However, in view of the fact that in each of the alleged confessions incriminating statements were made against other defendants, we are unable to conclude that such incriminating statements were not prejudicial to such *346others when it became apparent that the State relied solely upon such confessions for the conviction of the defendants. As stated in S. v. Cotton, 218 N. C., 577, 12 S. E. (2d), 246: “Without questioning the power of the court to consolidate cases for trial in proper instances, and in discretionary authority ordinarily to deal with an application for a severance ... it would seem that a mistrial and severance at the close of all the evidence would have been in order.”

As the ease goes back for new trial, and as the record on appeal does not disclose in full the evidence upon which the court ruled as to competency of the alleged confessions, we make no decision thereon. However, we call attention to the case of S. v. Anderson, 208 N. C., 771, 182 S. E., 643, and cases therein cited, as well as other decisions on the subject.

Also, as there is to be a new trial we deem it unnecessary to deal with exception to form of judgment.

New trial.