{ "id": 8567166, "name": "STATE v. RICHARD VIRGIL", "name_abbreviation": "State v. Virgil", "decision_date": "1964-11-25", "docket_number": "", "first_page": "73", "last_page": "77", "citations": [ { "type": "official", "cite": "263 N.C. 73" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "180 S.E. 571", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "208 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604319 ], "opinion_index": 0, "case_paths": [ "/nc/208/0313-01" ] }, { "cite": "199 S.E. 284", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "214 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630458 ], "opinion_index": 0, "case_paths": [ "/nc/214/0326-01" ] }, { "cite": "134 S.E. 2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "261 N.C. 322", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573118 ], "opinion_index": 0, "case_paths": [ "/nc/261/0322-01" ] }, { "cite": "83 S.E. 2d 792", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "240 N.C. 738", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610646 ], "opinion_index": 0, "case_paths": [ "/nc/240/0738-01" ] }, { "cite": "66 S.E. 2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "234 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618520 ], "pin_cites": [ { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0101-01" ] }, { "cite": "172 S.E. 879", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "206 N.C. 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628922 ], "pin_cites": [ { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/nc/206/0113-01" ] }, { "cite": "245 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609392 ], "pin_cites": [ { "page": "246, 96" } ], "opinion_index": 0, "case_paths": [ "/nc/245/0236-01" ] }, { "cite": "91 S.E. 2d 919", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 695", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626932 ], "pin_cites": [ { "page": "700" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0695-01" ] }, { "cite": "92 S.E. 2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 771", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627281 ], "pin_cites": [ { "page": "774" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0771-01" ] } ], "analysis": { "cardinality": 480, "char_count": 8360, "ocr_confidence": 0.602, "pagerank": { "raw": 3.877211781566574e-07, "percentile": 0.9007457577642558 }, "sha256": "1d39b02f948a30828d0bfd95ffb80f59445e66b03de5df329e7bc02946396f19", "simhash": "1:613f0da97077bc65", "word_count": 1390 }, "last_updated": "2023-07-14T15:44:48.035422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. RICHARD VIRGIL." ], "opinions": [ { "text": "Bobbitt, J.\nThe State\u2019s evidence, in brief summary, tends to show: On February 9, 1963, about 3:00 a.m., T. S. Matthews, part owner, was sleeping inside the premises of Matthews & Gentry Service Station and Grocery. He was awakened by a tapping noise at one of the outer doors. Thereafter, one Oliver Evans broke a glass panel in an overhead door to the garage portion of the premises, entered where, the glass panel had been broken and then, passing through a swinging door, entered the portion of the premises in which Matthews had been sleeping. Matthews\u2019 dog barked. Evans fired his shotgun and injured Matthews. Matthews fired his shotgun and injured Evans. Evans got out of the building and with difficulty reached the shoulder of the road. A car came along and stopped. When Evans attempted to get in this car, Matthews \u201cfired a pistol over the top of this car 2 or 3 times,\u201d and the car \u201cimmediately sped off and left this man (Evans) lying on the shoulder of the road.\u201d\nThere was evidence tending to connect defendant with the crime. Decision on this appeal is based on the admission over defendant\u2019s objections of the portion of such evidence set forth below.\nDefendant\u2019s assignments of error, based on his exceptions to the court\u2019s denial of his general motions for judgment as of nonsuit,, are overruled. Pertinent legal principles include the following: (1) Admitted evidence, whether competent or incompetent, must be considered in passing on defendant\u2019s motions for judgment as of nonsuit, S. v. McMilliam, 243 N.C. 771, 774, 92 S.E. 2d 202; Early v. Eley, 243 N.C. 695, 700, 91 S.E. 2d 919; Kientz v. Carlton, 245 N.C. 236, 246, 96. S.E. 2d 14. (2) A motion for judgment as of nonsuit addressed to the entire bill is properly overruled if there is evidence sufficient to support a conviction of the crime charged or of an included (G.S. 15-170) crime. S. v. Brooks, 206 N.C. 113, 114, 172 S.E. 879; S. v. Marsh, 234 N.C. 101, 105, 66 S.E. 2d 684.\nDefendant assigns as error the admission over his objections of testimony of Deputy Sheriff Covert as to statements made by Oliver Evans on February 12, 1963, at Wake Memorial Hospital. The facts in evidence bearing upon the competency of this testimony are stated below.\nCovert arrested defendant shortly after 7:30 a.m., February 9, 1963, and put him in the Wake County Jail. Thereafter, defendant was in custody. Covert advised defendant he was \u201cunder arrest for burglary.\u201d Between February 9th and February 12th, Covert questioned defendant \u201cseveral times.\u201d Covert testified: \u201cVirgil repeatedly told me that he did not know anything about the breakin.\u201d\nFrom early morning on February 9th until February 12th and thereafter, Evans was a patient in Wake Memorial Hospital. On the night of February 11th, Covert went to the hospital and obtained a statement signed by Evans \u201cof where he was and what happened on the morning of the 9th.\u201d Covert testified: \u201cAfter obtaining the statement I came back and confronted Virgil with it. I read it to him.\u201d (Note: The written statement was not offered in evidence.)\nThe following day, February 12th, defendant was taken to Evans\u2019 hospital room. In the presence of Evans, A. G. Scarborough, a deputy sheriff, and defendant, Covert read the statement he had obtained from Evans the preceding night and asked Evans if it was true. Evans stated it was true. Thereafter, according to Covert, Evans made the following statement in the presence and hearing of defendant: \u201cRichard, you know you carried me down to Mr. Poole\u2019s Store, which I broke into, didn\u2019t get much money. We talked it over and decided to go to Matthews & Gentry, went to Matthews & Gentry. I broke in, I got shot, came back out to the road, I tried to get in your car, and I said, \u2018Richard, I have been shot, carry me to the hospital,\u2019 you drove off and left me there to die.\u201d\nCovert testified: \u201cWhen Oliver Evans made this statement, Virgil dropped his head and begun to ciy \u2014 shake all over. After Oliver Evans made this statement that I have testified to to Richard Virgil, Richard Virgil had an opportunity to make any statement that he might want to in reply. I asked him, I said, \u2018Richard, how about it?\u2019 He didn\u2019t say anything, kept crying and shaking. I then brought him back to the Wake County jail. Deputy Scarborough and myself sat in the car in the parking lot and talked to him for several minutes; he cried continuously until we put him back in the lockup. He never made any statement as to Oliver Evans\u2019 statement not being true, said he didn\u2019t see why he would do that. That was all he ever said. He made this statement in the parking lot. We were in Evans\u2019 hospital room some three or four minutes after he made this statement before we took Richard away.\u201d\nA warrant charging defendant with burglary \u201cwas signed\u201d by Covert on February 15th and served on February 16th.\nNothing else appearing, Covert\u2019s testimony as to what Evans said was incompetent as hearsay and therefore inadmissible. Stansbury, North Carolina Evidence, \u00a7 138. Here, the competency thereof depends upon whether, under the circumstances, defendant\u2019s failure to deny such statements may be considered an implied admission of the truth thereof. Competency is to be determined by legal principles established by decisions of this Court reviewed and applied in S. v. Temple, 240 N.C. 738, 83 S.E. 2d 792, and in S. v. Guffey, 261 N.C. 322, 134 S.E. 2d 619. See Stansbury, op. cit, \u00a7 179.\nAccording to undisputed evidence: Defendant was under arrest and in custody from February 9th through February 12th. Covert had advised defendant, he was under arrest for burglary. Covert questioned defendant several times and defendant repeatedly told Covert he knew nothing about the alleged burglary. No warrant charging defendant with burglary had been issued. Under these circumstances, Covert \u201ctook\u201d defendant to Evans\u2019 hospital room. Against this factual background, defendant\u2019s failure to deny Evans\u2019 incriminating statements may not, in our opinion, be considered an implied admission of the truth thereof.\nMoreover, as stated by Moore, J., in S. v. Guffey, supra: . . an admission or confession, even where it may be implied by silence, must be voluntary. Any circumstance indicating coercion or lack of volun-tariness renders the admission incompetent. State v. Hawkins, 214 N.C. 326, 199 S.E. 284; State v. Dills, 208 N.C. 313, 180 S.E. 571. No one can be forced to incriminate himself, or to make a false statement to avoid doing so. State v. Dills, supra.\u201d In our view, defendant\u2019s presence and conduct in Evans\u2019 hospital room on February 12th may not reasonably be considered voluntary on the part of defendant.\nUnder the circumstances disclosed by the evidence, we are of opinion, and so hold, that Covert\u2019s testimony as to Evans\u2019 statements (declarations) was incompetent and that the admission thereof was prejudicial error.\nNew trial.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Attorney General Bruton and Deputy Attorney General McGalliard for the State. ' ' ' . .", "George M. Anderson for defendant appellant." ], "corrections": "", "head_matter": "STATE v. RICHARD VIRGIL.\n(Filed 25 November, 1964.)\n1. Criminal Law \u00a7 168\u2014\nIn passing upon defendant\u2019s exception to the refusal of his motion to nonsuit, all of the evidence admitted at the trial, whether competent or incompetent, must be considered.\n2. Criminal Law \u00a7 101\u2014\nDefendant\u2019s motion to nonsuit is properly overruled if there is evidence to support a conviction of the crime charged or an included crime. G.S. 15-170.\n3. Criminal Daw . \u00a7 48\u2014\nOfficers of the law obtained a confession from one of the parties charged . with perpetrating the offense, read the confession to defendant and took defendant to the hospital room where the party who had made the confession made statements implicating defendant. Held: Defendant\u2019s silence in the face of the accusation is not competent as an implied admission of guilt since such implied confession was not voluntary, and therefore testimony as to the accusations is incompetent as hearsay.\nAppeal by defendant from McLaughlin,