State v. Fox, 197 N.C. 478 (1929)

Oct. 2, 1929 · Supreme Court of North Carolina

197 N.C. 478

STATE v. ERNEST FOX.

(Filed 2 October, 1929.)

1. Homicide G a — Evidence of defendant’s guilt of murder in first degree held sufficient to be submitted to jury in this case.

Circumstantial evidence of the prisoner’s guilt of murder in the first degree is held under the facts of this case sufficient to be submitted to the jury.

2. Criminal haw G d — In this case held: testimony as to telegram sent by defendant tending to show his uneasiness was competent.

Testimony of a witness as to the contents of a telegram sent by the defendant while in the presence of the witness who heard the defendant narrate it to the telegraph operator and saw the operator write it down, which tended to show the defendant’s anxiety as to the knowledge of another of “something on” him, is admissible with other circumstantial evidence of defendant’s guilt of murder, as a circumstance tending to show guilt, the probative force being for the jury.

3. Criminal Law G i — Expert testimony as to the position of the deceased when shot held admissible under the facts of tills case.

When the position of the deceased when killed is relevant to the inquiry it is competent for a physician who had examined the deceased and who has qualified as an expert, to testify that the killing was done with a 44 bullet while the deceased was lying down and explain the facts and circumstances upon which he based his opinion, and such testimony does not violate the rule that the issue of the defendant’s guilt is exclusively for the determination of the jury.

4. Criminal Eaw G 1 — Where a prior confession is inadmissible a subsequent confession made without fear or hope may be admissible.

Where the confession of the defendant of his guilt of murder, made to an officer of the law, is excluded by the judge upon a voire dire on the ground that it was induced by fear or favor and therefore not voluntary, a later confession, made to another witness, is admissible when the judge finds upon sufficient evidence upon voire dire that it was not influenced by the causes which had induced the previous confession and that it was free and voluntary, and made without fear or favor.

Appeal by defendant from Small, J., and a jury, at June Term, 1929, of Edgecombe.

No error.

The defendant was indicted for murder of one Jesse Taylor and convicted of murder in the first degree and sentenced to be electrocuted. The State’s evidence tended to prove that Jesse Taylor was a young man about 20 years of age and was engaged in the grocery business in Rocky Mount, on East Grand Avenue. That on Saturday night Jesse Taylor' was in the store a little after 12 o’clock checking up and counting his money. Jesse Taylor was a single man and customarily slept in his place of business, his father and family resided in another section of tbe city, some distance from tbe store. On tbe next morning, Sunday, 26 May, tbe members 'of tbe family telephoned tbe store and received no response, one of bis brothers went to tbe store, and after knocking and hollering, with no response, the brother with others forced an entrance by breaking tbe door of tbe store, which was locked on tbe inside. They found Jesse Taylor on a cot dead, with blood on bis bead. Tbe two brothers and tbe father of Jesse Taylor identified a 41 caliber Colt revolver as the property of J. H. Taylor, father of Jesse Taylor, which be bad loaned to Jesse Taylor, bis son, with instructions by tbe father to keep same in bis store. Neither bis father nor brother was able to place tbe said Jesse Taylor in tbe possession of tbe revolver they identified inside of two weeks prior to the time of Jesse Taylor’s death. Tbe father, brothers nor did any State’s witness see defendant enter or leave tbe store either on Saturday, 25 May or Sunday, 26 May.

Louis Perry’s testimony was to tbe effect that be bad known defendant three or four years, and knew where bis father lived on 26 May. He saw defendant Thursday, 23 May, at Jesse Taylor’s store at an early hour, about five minutes of six o’clock. That Jesse Taylor and two white men and defendant Fox were in tbe store and were so dressed as to indicate that they bad slept in Jesse Taylor’s store tbe night before.

E. A. Pittman: Knew Jesse Taylor; be ran a store on East Grand Avenue, No. 600, and rented tbe store next door to him, No. 602, to Taylor, and then Taylor moved across tbe street to another building. “Tbe night before Jesse Taylor was killed, Saturday night, Ernest Fox, tbe defendant, entered my store at about eleven-thirty p.m., and stayed there until I cleaned up and begun to close up. It was a quarter to one when I got'cleaned up and closed. "While Fox was in tbe store be just sat at tbe window in tbe corner of tbe building, looking out tbe window, and didn’t have anything to say. Tbe window be was sitting at was on tbe street side — tbe west side of tbe street looking west. There is nothing on tbe other side but tbe store where Jesse Taylor kept. Fox was employed at one time by Jesse Taylor. He stopped work about three weeks before Jesse Taylor’s death. I saw another delivery boy working for Mr. Taylor afterwards. On tbe morning of 26 May, I opened my place of business, as near as I can get at, about seven o’clock. Jesse Taylor’s body was found about ten o’clock. I went over. Tbe body was lying with tbe bead to one side, and I saw blood here and here (indicating), and I went right back.”

Clarence Taylor testified: “I identified this book on yesterday as iny brother’s bank book. I know my brother’s bandwriting. Yes, that is bis bandwriting and bis figures. I found that deposit slip on Sunday morning that my brother was found dead in tbe store on tbe counter near tbe cash register. I forget what day we found tbe book, but it was found in the desk where the money bag was. I saw my brother make out the deposit slip that Saturday night before he was found dead Sunday morning. (State offers in evidence the deposit slip and bank book and the pistol and.two bullets about which Dr. Large testified.) I saw my brother checking up Saturday night, but didn’t know how much he had until I seen the deposit slip. I never saw that before Sunday morning. I was looking at my brother when he made out the slip and put it in the hank book. I was three or four feet from him. I do not know the exact figures. I found it a little after ten o’clock Sunday morning. I left the store Saturday night around one or one-fifteen. He put the money in the bank book in a hag and tied it up. I don’t know what my brother did in respect to the slip after I left. I know what the slip called for. I didn’t count the money and couldn’t tell you. That is the bag. He had a key ring on his belt and the door key was on there, but what was on the other keys I don’t know. I never saw them but one time. I have made a search in the store for them, but have been unable to find them. (State offers in evidence the bag.) I found the bag in the desk Wednesday morning, I believe.”

George. Planter: That he lived on Atlantic Avenue in Rocky Mount and made hogsheads. He identified the 41 caliber Colt revolver — the gun previously identified by the father and two brothers of Jesse Taylor which the father had loaned Jesse Taylor; that defendant came to his house Sunday morning before last between 3 and 4 o’clock and knocked on the door; he was in bed. . After some conversation, he pulled out the revolver and handed it to him and said keep it until he called for it. Later on the same morning he tried to buy the pistol on credit from Fox. The revolver had five bullets in it and six chambers, but there was no empty shell in it. Defendant did not tell where he got it or why he wanted him to keep it. The first time he came in a Hudson car like Ben Johnson drives; the second time in an open Ford.

Ben Johnson: “Was taxi driver and lived in Rocky Mount. Had known defendant two or three years. He was parked on the morning of 26 May at Douglass Drug Store. Fox said he wanted him to take him home. He carried defendant to various places, one Frank Williams accompanying the defendant: (1) To defendant’s home on Pennsylvania Avenue; (2) about five minutes afterwards to George Planters; (3) to Easter Ricks’ house; (4) to Wimberly’s Pressing Club; (5) to Myrtle Avenue; (6) to Rosa B. Ellis’ house, then to Douglass Drug Store, and he and Williams got out. That was about 3 :30 o’clock. Fox, when he went to the Pressing Club, got some dresses and carried them to Rosa B. Ellis’. He did not know Planter and heard no conversation between them. He was paid $1.05 for the trip.”

J ohn J ones: “Lived in Rocky Mount and worked for tbe Dodge people. He knew defendant, and on Saturday morning, 25 May, defendant came by and wanted to buy an old automobile from bim. He for several months was after bim to buy an old car. I told bim there was an old Ford be could have for $20. He looked at it and liked it, and said be would come after it when be got tbe money. Told bim be bad better burry, as be could 'not have it unless be came by 6:30 that evening. At ten minutes to six be came back and said be didn’t have tbe money, but expected to get it pretty soon. Next morning about 5 :30 be came to witness’ bouse and awoke bim and everybody else in bis bouse, and asked if be could get tbe car that morning. Witness said be thought so, and asked bim if be bad tbe money, and be said ‘Yes,’ and pulled out two ten dollar bills — $20.00. They went over to tbe foreman’s, and be told them be would get down at tbe place of business about 8 o’clock, and that defendant could get tbe car. In going to tbe foreman’s defendant went by tbe police station and through tbe public streets of Rocky Mount, where be could be seen by both white and colored, and tbe officers of tbe law. He did not seem excited, nor did be try to hide or conceal himself. Defendant bad a little liquor in bis pocket when be came to me that morning, and I told bim be bad better throw it away because my Boss didn’t like liquor, and I didn’t want bim to see any around. When be came to my bouse at five-thirty be didn’t look like be bad drunk a drop.”

Clearance Griffin: “Drove a transfer in Rocky Mount. About seven o’clock, 26 May, in front of Dunbar’s Cafe, defendant hired witness to take bim across town to Rosa B. Ellis’ bouse. He stayed there about five minutes, and be brought bim back to tbe transfer shed and put bim off at Burnette’s Drug Store. He paid bim 75 cents, and that was all tbe money be saw bim have; went through tbe heart of Rocky Mount, colored section, and could be seen by them. Went in public places, and defendant acted perfectly natural; didn’t seem in a burry or scared. He was not flourishing money around like a man that bad plenty of it.”

Alexander Grant: “Lived in Rocky Mount, and bad known defendant three or four years. Met defendant Sunday morning, 26 May, at Douglass’ Drug Store, and bad just come out of Dunbar’s Cafe and bad a lunch wrapped up. Drove up and asked me if I wanted to go to Wilson. Told bim yes, but I bad no money, and defendant said be would take care of that part. He and another colored boy went in tbe Ford that defendant told bim be bad bought that morning for $20.00. Left Rocky Mount ten minutes to eleven o’clock. Before they left Rocky Mount defendant showed bim and tbe boy $7.00; before they got to Sbarpsburg defendant showed them $55.00; said be got tbe money from bis mother, who bad sold some Liberty bonds. Said be was going to bis aunt’s to get some money left Mm by a relative, and he had just come of age and could get it. Stopped at Sharpsburg on the way to Wilson. Went to Stantonsburg and Paul Chapel, where defendant’s aunt lived. They went to service. Left the chapel about'4:30 p.m., and went to Snow Hill. Returned to Wilson at 7:30; ate supper in a cafe. After supper defendant called up Bosa B. (Ellis) over phone at Rocky Mount. That Eox afterwards told witness that the girl said, U know something on you,’ and that Fox asked her to meet him at Elm City, that they went to Elm City, but that Bosa B. did not meet them; that they stayed in Wilson that night; that they were having constant car trouble. They stayed that night in a hotel. That on Monday morning they decided to go to Greenville. On the way to Greenville they stopped in Earmville. At Farmville they parked the car near á telegraph office, and that witness sent a telegram to his mother at Bocky Mount; that the other party sent another telegram to some one in Bocky Mount; that Ernest Eox sent a telegram to Bosa B. at Bocky Mount. U seen the man write it.’ (Question) What did he say to her? (Defendant objects.)

By-the Court: Did you hear Fox tell the man what to say in the telegram? Answer: Yes, sir.

Q. Was that in the telegram what Eox said? Answer: He said ‘I like to know what you are talking about,’ and said to wire him back in care Greenville Western Union. This was about eleven o’clock Monday morning. We then struck out for Greenville. We drove around town, and he got out and parked his car about a block from the Western Union, and went to the Western Union to see if the telegram came. It was twenty minutes to twelve o’clock then, and the telegram hadn’t come. He had a suit pressed. Witness then proceeds to tell Fox’s movements around Greenville, and about the witness and the witness’ companion, aside from Fox, spending Monday night in an automobile in Greenville. The next time we saw him he was under arrest in Greenville. That was the next morning — Tuesday.”

Dr. H. Lee Large was admitted to be a medical expert. He examined the body of Jesse Taylor on the Sunday morning near eleven o’clock. “The body was on a cot in the northwest corner of the store building. The body was lying on the cot on the right side. He had a bullet wound which entered on the left side or under the left side of his jaw, barely missed the jaw-bone; ran slightly backward and across to enter the base of the skull between the ears. (The witness is here qualified and the court finds as a fact that the witness is an expert in judging the caliber of a pistol and the size of a pistol ball.)

Question: Have you an opinion satisfactory to yourself on this question, as to whether or not Jesse Taylor, the wound which was found in his neck, was inflicted while he was lying or standing up ? (Defendant objects; objection overruled, and defendant excepts.) Answer: Yes, sir, my opinion is tbat be was lying down.

Question: I ask you to explain so far as you can wby you say tbat ? (Defendant objects; objection overruled, and defendant excepts.) Answer : First tbe range of tbe bullet from its point of entry to its final point of lodging in tbe bead of tbis man was sucb tbat would bave made it impossible for a man to bave been in a standing position wben tbe shot was fired; and, secondly, tbe condition of tbe body was sucb as to indicate tbat tbe body, in other words, tbis man bad never made any voluntary movement from tbe time tbe sbot was fired, and it is borne out by tbe wound. Tbe wound was sucb as would bave caused immediate paralysis of tbe body, after tbe bullet was fired. There was no other wound on bis body.”

Dr. Large further produced tbe bullet taken from Jesse Taylor’s body and testified it was in three pieces and was a 41 caliber bullet.

Witnesses P. G. Zimmerman, and R. 0. Watson, police officer, of Eocky Mount and deputy sheriff, respectively, were examined as witnesses for tbe State. Wben interrogated relative to an alleged confession of tbe defendant, tbe defendant objected; whereupon, said witnesses were examined in tbe absence of tbe jury with a view of determining tbe competency of their testimony relative to said confession. Upon tbe evidence elicited, in tbe absence of tbe jury, tbe court found as facts: Tbat tbe statements alleged to bave been made by tbe defendant, both written and oral, in tbe nature of a, confession, were induced either by fear or hope, and tbat sucb statements as so alleged to bave been made by tbe defendant were not voluntary in their nature. Upon sucb findings by bis Honor, upon motion of defendant, tbe evidence of witnesses Zimmerman and Watson, relating to tbe alleged confessions, were excluded.

In tbe absence of tbe jury, tbe following witnesses were examined: George T. Sugg, defendant Ernest Fox, E. O. Watson, S. P. Marler, to determine tbe competency or incompetency of tbe witness George T. Sugg.

Upon tbe conclusion of tbe evidence tbe court below found tbat as a fact tbe statement made by tbe witness George T. Sugg, while said witnesses were inspecting tbe jail along with other grand jurors, was a voluntary statement and' rules tbe same admissible in evidence. (Defendant objects; overruled; defendant excepts.)

In tbe presence of tbe jury:

George Sugg: “I was a member of tbe grand jury during tbe present six months. I came on tbe first of January and go through tbe year.I went to tbe jail on Monday afternoon and made an inspection. I saw tbis fellow here, but I didn’t know who be was. I ashed him what he wras doing in there and what he was in there for, and he told he was in there for hilling a man, and I sa$,d, ‘For what?’ and he said, ‘For his money.’ I éshed him had he been in trouble before, and he said two or three times. I didn’t ash him anything else. I did not put him in any fear to tell. I did not hnow who he was when I ashed him that; I did not hnuw that he was the mam, that was alleged to have hilled Jesse Taylor. I bad been upstairs. I went into all tbe rooms. All of tbe grand jury came in tbe cell where Ernest Fox was confined, tbat could get in at one time. I am not sure about tbat, though. Some of tbe grand jury were ahead of us; we were going all over tbe bouse. I don’t remember who was with me at tbe time of tbe conversation. There were eight or ten or twelve people in there. ¥e did not communicate to Ernest Fox what we were in there for. I did not have any idea that this was tbe man tbat was accused of tbe Rocky Mount murder. That’s what he said, 'For hilling a man,’ and I said ‘For what?’ and he said, ‘His money.’ I asked other prisoners in tbe jail what they were in there for, some white and some colored. I knew nothing about tbe previous conversations other people bad with Ernest Fox. I bad never seen him before tbat day. We were in there about four o’clock. Tbat was all be said to me. I don’t remember when I first told what transpired between us. I haven’t told an officer, because I left here and went home. I did not communicate this conversation to any officer. Tbe sheriff served subpoena on me this morning.”

P. 0. Zimmerman’s testimony was a narrative of a conversation he bad with defendant as to bis whereabouts on tbe night of tbe killing. About 12 o’clock defendant and Frank Williams bad purchased a half gallon of whiskey for $2.50 from Dancy Ward on Langley Road tbe other side of tbe A. C. L. Company’s pump station. He paid $1.75, Williams tbe balance, and they came to town to tbe Douglass Building, went in Wimberly’s Pressing Club, got some clothes, and Ben Johnson took him home at 2 o’clock Sunday morning, and was there until 6 o’clock and went to Douglass Building; went about 9 :45 to Wilson. He then narrated where defendant told him be went. “I asked him what be paid for tbe car and be said $20.00. I asked him where be got tbe money to buy tbe ear and be said be won it gambling, and I asked him where, and be said ‘Langley Road in a tobacco barn.’ I asked him bow much money be bad when be bought tbe car, and he said $43, and I asked him bow much be bad when be entered tbe game, and be said $8.00; and I asked him bow much be won, and be hesitated and I said, ‘Did you win $35.00?’ and be said ‘Yes.’ And I asked him bow much money did be have in bis pocket after be bought tbat automobile, and be said ‘$43.00,’ and then I asked him where did be get tbe money to buy tbe car, and be said Jim Whitley gave him $4.00, his brother, Harvey Fox, Jr., who is just a small fellow, gave him $8.00, and be said be bad $8.00 at tbe bouse be bad saved for tbe purpose of buying a ear. I tben asked bim if be bad any more money from Sunday morning until tbe time be was arrested except tbe $43.00 in question, and be said ‘No,’ tbat was all be bad. ... I asked bim where be was at 12 o’clock and be said at Dancy Ward’s buying whiskey. I asked bim where be was at 1:30, and be said ‘In a tobacco barn, 'Langley Road, gambling.’ I asked bim who was in tbe game, and be said ‘Nathan Speight and Charles Woodard and four others.’ I asked bim where be was at 2 :15, and be said ‘In tbe tobacco barn gambling.’ I asked bim where be was at 3 :30, and be said be was still in the tobacco barn gambling. I asked bim where be was at 5 o’clock, and be said be was at home. I asked bim what time be got up, and be said about 6 o’clock. I tben asked bim if be knew Jesse Taylor, and be said be did, and I asked bim did be ever work for bim and be said be did. I asked bim bow long, and be said three weeks. I asked bim did be ever see Jesse’s gun, and be said be did before be moved from Pittman’s store to tbe place where be died. I'asked bim if be bad ever spent tbe night in tbe store with Jesse Taylor on a pallet on tbe floor, and be said be absolutely bad not; tbat be bad never spent a night in there. There were some more questions, but I can’t recall them right now.”

Tbe defendant introduced no evidence.

Attorney-General Brummitt a/nd Assistant Attorney-General Nash for the State.

George M. Fountain and T. T. Thorne for defendant.

Clarkson, J.

Tbe evidence, from the record, is sufficient, with or without the confession of defendant, to be submitted to the jury to sustain a verdict of murder in the first degree. S. v. Miller, ante, 445.

Tbe defendant excepts and assigns error to bis Honor’s permitting the witness Grant to testify as to the contents of the telegram sent by defendant Eox to Rosa B. Ellis. Tbe witness, however, was standing by and beard what Fox said. Not only this, but be saw the man write down on the blank what Eox said: “I seen the man write it.” He said, “I like to know what you are talking about,” and to wire bim care of Greenville Western Union. It was no doubt introduced as some evidence to show Fox’s anxiety as to what Rosa B. Ellis meant when she told bim over the telephone that “I know something on you.” This was admissible for what it was worth-^-the probative force was for the jury.

Tbe defendant further excepts and assigns error: Tbat it was incompetent “to permit State’s witness, Dr. Large, to testify that the deceased, Jesse Taylor, was, in bis opinion, lying down when be received the fatal wound, and to further testify as to bis reasons, as it invades the province of the jury.” We cannot so bold.

In S. v. Jones, 68 N. C., at p. 444, it is said: “Tbe only point made was as to the competency of the opinion of the physician wbo was examined for the State, as to the cause of death of the deceased, and of bis posture and position at 'the time be was shot. It was not denied that the opinion was competent as to the cause of death, but it was insisted that it was incompetent as to the póstur.e and position. ¥e suppose an expert might express an opinion of the posture and position from the range of the shot, and other circumstances.”

In McManus v. R. R., 174 N. C., at p. 737, the following observations are made: “It was also urged for error that Dr. McCoy, a witness for plaintiff, wbo bad made a professional examination of the intestate at the time, was allowed, over defendant’s objection, to testify that ‘from the nature, condition and position of the wounds, be was of opinion that the intestate was lying down at the time the same was inflicted.’ It will be noted that this witness, admitted to be an expert, spoke from a professional and- personal examination of the intestate, and the answer, to our minds, was clearly within the domain of expert opinion. Both question and answer are approved and upheld, we think, in Ferebee v. R. R., 167 N. C., 290; Parrish v. R. R., 146 N. C., 125; S. v. Jones, 68 N. C., 443.” Shaw v. Handle Co., 188 N. C., 222; Butler v. Fertilizer Works, 195 N. C., 409; Street v. Coal Co., 196 N. C., 178; see S. v. Carr, 196 N. C., 129.

Tbe most serious contention of defendant was the admission of the testimony of Grand Juror Sugg, wbo visited the jail for the purpose of inspection. Tbe defendant’s confessions to the officers, made prior to that time, were ruled out on the ground that defendant was induced to' make them from fear or hope. The court below, on the voir dire, found that they “were induced either by fear or hope, and that such statements as so 'alleged to have been made by defendant were not voluntary in their nature.” These confessions to the officers were, from the findings of the court, properly excluded, and the court below gave the rule that is followed^ in all civilized nations.

In S. v. Roberts, 12 N. C., at pp. 261-2 (1 Dev., 259), relied on by defendant, the law is thus stated by Henderson, J.: “Confessions are either voluntary or involuntary. They are called voluntary, when made neither under the influence of hope or fear, but are attributable to that love of truth which predominates in the breast of every man, not operated upon by other motives more powerful with him, and which, it is said, in the perfectly good man, cannot be countervailed. These confessions are the highest evidences of truth, even in cases affecting life. But it is said, and said with truth, that confessions induced by hope or extorted by fear, are, of all kinds of evidence, the least to be relied on, and are therefore entirely to be rejected. It seems to be admitted in this case, that the confessions first made, were of that character, and were therefore rejected; but that being repeated to tbe same person some time after-wards, they lost their original character, assuming that of free and voluntary ones, and became evidence of the truth. But for what reason I am at a loss to conceive. How or whence does it appear, that the motives which induced the first confession had ceased to operate when it was repeated? It is not incumbent on the prisoner to show that they resulted from the same motives. It is presumed that they did, and evidence of the most irrefragable kind should be produced to show that they did not. It is sufficient that they may proceed from the same cause (4 Starkie, 49).”

In S. v. Fisher, 51 N. C., p. 478, Battle, J., shows that the reference made by Henderson, J., to Starkie, was from Ed. 1824, p. 49. The learned judge says that “In a subsequent edition (that of 1842, p. 36), Starkie somewhat modifies the rule, and says, ‘where a confession has once been induced by such means, all subsequent admissions of the same, or like facts must be rejected if they have resulted from the same influence.’ ” S. v. George, 50 N. C., 233; S. v. Lowhorne, 66 N. C., 638; S. v. Ellis, 97 N. C., 447; S. v. Harrison, 115 N. C., 706; S. v. Winston, 116 N. C., 990; S. v. Rodman, 188 N. C., 720; S. v. Whitener, 191 N. C., 659; 7 A. L. R., 420; S. v. Newsome, 195 N. C., 552.

In S. v. Lowhorne, supra, at p. 640, we find: “It is true, that in the case of S. v. Roberts (1 Dev., 259), the confession was made to the same person, but that, we think, can make no difference.”

In S. v. Drake, 113 N. C., at p. 628, Burwell, J., in regard to confessions, said: “It is a well settled rule that if promises or threats have been used, it must be made to appear that their influence has been entirely done away with before subsequent confessions can be deemed voluntary, and therefore admissible. And hence, it having been found that an improper influence was used to obtain the confession that was excluded, and it not having been made to appear that that influence had been in any way removed, the confession made on the journey to jail to one of the crown should also have been excluded. S. v. Drake, 82 N. C., 592.” S. v. Page, 127 N. C., 512; S. v. Bohanon, 142 N. C., 695; S. v. Whitener, supra.

“Confessions are to be taken as prima facie voluntary and admissible in evidence, unless the party against whom they are offered allege and show facts authorizing a legal inference to the contrary.” S. v. Sanders, 84 N. C., at p. 730; S. v. Rodman, supra.

This Court, through Dillard, J., speaking to the subject in S. v. Sanders, supra (84 N. C.), at p..730, said: “Under the objection made, the admissibility of the confession depended on the facts accompanying it and the legal inference therefrom, the facts being matter for the decision of the judge and conclusive, and the sufficiency or insufficiency thereof to warrant the admission or exclusion of the evidence being matter of law reviewable in this Court. S. v. Andrew, Phil. (61 N. C.), 205; S. v. Whitfield, 70 N. C., 356. If from the facts the -legal inference be that the confession was voluntary, then the evidence was receivable, otherwise, not.” S. v. Whitener, supra; Smith v. Kron, 96 N. C., at p. 396.

Tbe confessions made to the officers having been ruled out as incompetent, induced either by hope or fear, it must be made to appear that that influence has been done away with or removed before subsequent confessions can be deemed voluntary and therefore admissible. "When objection is made, the competency or incompetency must be beard on the voir dire. “V.oir dire — to speak the truth. This phrase denotes the preliminary examination which the court may make of one presented as a witness or juror, where bis competency, interest, etc., is objected to.” Black’s Law Die., p. 1212.

Tbe court below on the voire dire beard all the evidence introduced, including that of defendant, and found that the statement made to the grand juror was voluntary and admissible in evidence. There was evidence to sustain this ruling, therefore the testimony of the grand juror was properly admitted as evidence, in this we can see no error. From the whole record we can find

No error.