
192 S.E.2d 304 (1972)
282 N.C. 201
STATE of North Carolina
v.
John Lee EDWARDS.
No. 2.
Supreme Court of North Carolina.
November 15, 1972.
*306 Robert Morgan, Atty. Gen., by Burley B. Mitchell, Jr., Asst. Atty. Gen., for the State.
Chambers, Stein, Ferguson & Lanning, by Adam Stein, Kenneth S. Broun, Chapel Hill, for defendant appellant.
HIGGINS, Justice.
By Exceptions Nos. 28 through 68, the defendant challenged the court's findings and order culminating in the admission of his confession in evidence before the jury. The evidence before the court with reference to the circumstances under which the confession was obtained was free from conflict. Its interpretation, therefore, became a question of law.
Here is a summary of the essential facts as disclosed by the testimony of the officers: Eighteen days after the dead body of Mrs. Lloyd was discovered, the officers questioned the defendant, an 18-year-old retarded colored male with 60 IQ. Officer Horton, describing the defendant, testified: "Both his parents are deceased. And he more or less grew up like . . . a weed on the street fighting for his survival."
At first he denied any knowledge of Mrs. Lloyd's death and he stated that he was out the night of September 4-5 with named friends. When questioned, they failed to corroborate his story. Thereafter, on September 23-24, the officers conducted a further interrogation, pointing out the contradictions in his stories. While that interrogation was underway, a bondsman for the defendant in another criminal case "turned him in." Thereafter, he was in custody. The interrogation continued in the Chapel Hill solicitor's office until 1:30 a. m. At that time he began to cry and admitted to the officers he had broken into Mrs. Lloyd's house for the purpose of stealing. She awakened, began screaming, and he choked her. He then disconnected the telephone and left. The officers reduced the confession to writing, using as much of defendant's words as fitted the story. They obtained a promise from him that he would repeat the confession and sign it in the presence of an attorney when the court appointed one to represent him.
Although it was after midnight and the interrogation had been underway for several hours, the investigating officers left Chapel Hill with the defendant in custody, having called the district judge who appointed Mr. Noell attorney for the prisoner. Mr. Noell reported at once to the Hillsborough jail and conferred briefly with the defendant. The officers then, in the presence of Mr. Noell, presented the confession written in Chapel Hill and requested the defendant to sign it as he had promised to do before he saw Mr. Noell. Notwithstanding the advice of his attorney not to sign the confession or make any admissions, one of the officers reminded the defendant of his promise and admitted he said to John: ". . . (I)f this is the statement you gave me, I would like your signature here. And this is the time that John signed it." The confession was offered and admitted in evidence over the defendant's objection.
*307 The record discloses the Miranda warnings were given before any of the interrogations, but the defendant was without the presence or the advice of counsel until just before placing his signature on the writing prepared by the officers. The incidents here involved occurred prior to October 30, 1971, when G.S. 7A-457 was amended. State v. Wright, 281 N.C. 38, 187 S.E.2d 761; State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123; State v. Lynch, 279 N.C. 1, 181 S.E.2d 561.
It is obvious that the defendant's promise that he would repeat the confession in the presence of his attorney in Hillsborough outweighed the advice of the attorney. The confession obtained after a long questioning in the absence of counsel was inadmissible. When it was repeated pursuant to the promise, the taint was not removed. The prisoner was required to make a decision between the advice of his attorney not to sign and the promise he had made to the officers when he was not represented by counsel that he would sign in the presence of the attorney. He chose to disregard the advice of counsel and to keep his promise to the officers. Such was the uncontradicted evidence of the State's witnesses.
There was actually no break in the interrogation procedure beginning early in the evening at Chapel Hill and culminating in the signing of the confession at 3 o'clock in the morning in Hillsborough. At the end of a long interrogation without counsel, the defendant, in tears, had made the confession. The inference is inescapable that the officers, thereafter, were in a hurry to have the defendant repeat the confession in the presence of a lawyer. As soon as the confession was obtained, although after midnight, the officers called the district judge who appointed Attorney Noell. Mr. Noell appeared promptly at the jail in Hillsborough where he advised the defendant not to make any admissions and not to sign any papers. The defendant signed after the officers told him that he need not follow the advice of his counsel. He signed on the line as requested by the officers.
The confession in Chapel Hill was inadmissible as having been induced at a time when the defendant was without counsel. The promise to repeat it was also made without counsel. It is not altogether surprising that this retarded boy paid more attention to his recent promise to the officers than he did to the advice of an attorney whom he did not know. The officers were his custodians. The attorney was a stranger. In this setting, the confession cannot qualify as voluntary.
The test by which admissibility is measured, was stated by Chief Justice Stacy in State v. Moore, 210 N.C. 686, 188 S.E. 421:
"Voluntary confessions are admissible in evidence against the party making them; involuntary confessions are not. A confession is voluntary in law when, and only when, it was in fact voluntarily made ....
* * * * * *
"It is true that, where a confession has been obtained under circumstances rendering it involuntary, a presumption arises which imputes the same prior influence to any subsequent confession, and this presumption must be overcome before the subsequent confession can be received in evidence." (Citing authorities.)
The Supreme Court of the United States in Clewis v. Texas, 386 U.S. 707, 710, 87 S.Ct. 1338, 1340, 18 L.Ed.2d 423, stated the rule:
"On this record, we cannot hold that petitioner's third statement was voluntary. It plainly cannot on these facts, be separated from the circumstances surrounding the two earlier `confessions.' There is here no break in the stream of events from the time Sunday morning when petitioner was taken to the police *308 station to the time Tuesday morning some nine days later that he signed the statement in issue, sufficient to insulate the statement from the effect of all that went before. Compare United States v. Bayer, 331 U.S. 532, 540, 67 S.Ct. 1394, 1398, 91 L.Ed. 1654 (1947) with Reck v. Pate, 367 U.S. 433, 444, 81 S.Ct. 1541, 1548, 6 L.Ed.2d 948 (1961)."
In State v. Gray, 268 N.C. 69, 150 S.E.2d 1, this Court stated the rule:
". . . `Any circumstance indicating coercion or lack of voluntariness renders the admission incompetent.' State v. Guffey, supra [261 N.C. 322, 134 S.E. 2d 619]. The fact that the defendant was in custody when he made the statement is a circumstance to be considered. State v. Guffey, supra [261 N.C. 322, 134 S.E.2d 619]. The mental capacity of the defendant is also a circumstance to be considered. State v. Whittemore, 255 N.C. 583, 122 S.E.2d 396. There may, of course, be coercion of the mind without physical torture or threat thereof. State v. Chamberlain, 263 N.C. 406, 139 S.E.2d 620."
On the record before us we are forced to conclude the evidence before the able trial judge was insufficient to support his finding the defendant's written confession was voluntary. The court committed prejudicial error in permitting the State to offer it in evidence.
Other Assignments of Error do not require discussion.
For the court's error in admitting the defendant's confession, the verdicts are set aside, the judgments are vacated, and it is ordered that on each charge there be a
New trial.
