
116 S.E.2d 365 (1960)
253 N.C. 86
STATE
v.
Elmer DAVIS, Jr.
No. 217.
Supreme Court of North Carolina.
October 12, 1960.
*369 T. W. Bruton, Atty. Gen., Harry W. McGalliard, Asst. Atty. Gen., for the State.
Charles V. Bell, Charlotte, W. B. Nivens, for defendant, appellant.
HIGGINS, Justice.
Counsel for the prisoner contend the trial court committed five prejudicial errors: (1) Holding the confessions voluntary and permitting the State to offer them in evidence. (2) Overruling defendant's motion to dismiss. (3) Failing to set aside the judgment upon the ground the confessions were involuntary and obtained and offered in evidence in violation of the prisoner's rights under the Due Process Clause of the Fourteenth Amendment. (4) Ordering counsel for the prisoner to sit down and reminding him the trial is not a Roman circus. (5) Denying prisoner's timely request for special instructions.
The first three errors assigned in reality present one question: Were the prisoner's admissions to the officers voluntary? If voluntary, as the term is defined by our Court, they were admissible in evidence. As stated by Henderson, J., in State v. Roberts, 12 N.C. 259, "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, * * *."
In the case of State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 576, 28 A.L.R.2d 1104, Justice Ervin collected and analyzed our leading authorities on confessions. We quote one paragraph from his opinion:
"An extrajudicial confession of guilt by an accused is admissible against him when, and only when, it was in fact voluntarily made. State v. Thompson, 227 N.C. 19, 40 S.E.2d 620; State v. Moore, 210 N.C. 686, 188 S.E. 421; State v. Anderson, 208 N.C. 771, 182 S.E. 643. A confession is presumed to be voluntary, however, until the contrary appears. State v. Mays, 225 N.C. 486, 35 S.E.2d 494; State v. Grier, 203 N.C. 586, 166 S.E. 595; State v. Christy, 170 N.C. 772, 87 S.E. 499. When the admissibility of a confession is challenged on the ground that it was induced by improper means, the trial judge is required to determine the question of fact whether it was or was not voluntary before he permits it to go to the jury. State v. Litteral, 227 N.C. 527, 43 S.E.2d 84; State v. Andrew, 61 N.C. 205. In making this preliminary inquiry, the judge should *370 afford both the prosecution and the defense a reasonable opportunity to present evidence in the absence of the jury showing the circumstances under which the confession was made. State v. Gibson, 216 N.C. 535, 5 S.E.2d 717; State v. Alston, 215 N.C. 713, 3 S.E. 2d 11; State v. Smith, 213 N.C. 299, 195 S.E. 819; State v. Blake, 198 N.C. 547, 152 S.E. 632; State v. Whitener, 191 N.C. 659, 132 S.E. 603. The admissibility of a confession is to be determined by the facts appearing in evidence when it is received or rejected, and not by the facts appearing in evidence at a later stage of the trial. State v. Richardson, 216 N.C. 304, 4 S.E.2d 852; State v. Alston, supra. When the trial court finds upon a consideration of all the testimony offered on the preliminary inquiry that the confession was voluntarily made, his finding is not subject to review, if it is supported by any competent evidence. State v. Hairston, 222 N.C. 455, 23 S.E.2d 885; State v. Manning, 221 N.C. 70, 18 S.E.2d 821; State v. Alston, supra. A confession is not rendered incompetent by the mere fact that the accused was under arrest or in jail or in the presence of armed officers at the time it was made. State v. Litteral, supra; State v. Bennett, 226 N.C. 82, 36 S.E.2d 708; State v. Thompson, 224 N.C. 661, 32 S.E.2d 24; State v. Wagstaff, 219 N.C. 15, 12 S.E.2d 657."
Without repeating the testimony which is recited in the statement of facts, the trial court had the evidence of the officers that the prisoner was advised he need not make a statement; that if he did it might be used against him. These statements are repeated in the paper signed by him. The officers testified the prisoner had not been mistreated in any way; that he had the same food as other prisoners; that he did not ask to see or communicate with any person except his sister. This request was granted. On the day after the confession the prisoner told Dr. Tross, his former pastora member of his own racethat he had been well treated by the officers. Thus Judge Campbell had before him on the preliminary inquiry substantial and competent evidence upon which to base his finding the admissions of the prisoner were voluntary.
According to our practice the question whether a confession is voluntary is determined in a preliminary inquiry before the trial judge. He hears the evidence, observes the demeanor of the witnesses, and resolves the question. The appellate court must accept the determination if it is supported by competent evidence. State v. Fain, 216 N.C. 157, 4 S.E.2d 319; State v. Whitener, 191 N.C. 659, 132 S.E. 603; State v. Andrew, 61 N.C. 205.
The confession is corroborated in many essential particulars: By the findings of the pathologist; by John Shannon who saw a person hiding in the hedge near the Nivens monument as the prisoner told the officers he had done; by the police having previously found Mrs. Cooper's pocketbook (wrapped in a newspaper) and her glasses in the hedge where he said he had hidden them; by Bishel Buren Hayes who testified his shoes and socks, billfold and contents were stolen from him as the prisoner had admitted to the officers; by the fact the prisoner was able to take the officers to the bushes near the railroad track and recover his discarded clothing. The evidence was amply sufficient to make out a case of murder in the perpetration of the crime of rape. The motion to dismiss was properly denied.
The prisoner has urged that the trial court denied him his rights under the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. Of course, it is as much the duty of the State courts to protect the prisoner's rights under the Due Process Clause of the Fourteenth Amendment as it is to protect his rights under the State *371 Constitution and State laws. There is this difference, however, as we understand it: We place our own interpretation on our State Constitution and laws; but we are required to accept the interpretation the Supreme Court of the United States has placed on the Due Process Clause. Constantian v. Anson County, 244 N.C. 221, 93 S.E.2d 163; Constitution of North Carolina, Article I, Sections 3 and 5; Norris v. Western Union Telegraph Co., 174 N.C. 92, 93 S.E. 465.
In support of their contention the trial court denied to the prisoner due process rights, they cite many cases in which confessions have been rejected when a prisoner has been held beyond the time when he should have been taken before a committing magistrate for preliminary hearing. Careful examination will disclose that confessions were rejected under a rule of evidence set up for trials in the Federal courts and not for violation of constitutional rights under the Due Process Clause.
In the case of Brown v. Allen, 344 U.S. 443, at page 476, 73 S.Ct. 397, at page 417, 97 L.Ed. 469, the Supreme Court of the United States said: "If the delay in the arraignment of petitioner was greater than that which might be tolerated in a federal criminal proceeding, due process was not violated. Under the leadership of this Court a rule has been adopted for federal courts, that denies admission to confessions obtained before prompt arraignment notwithstanding their voluntary character. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100 * * *. This experiment has been made in an attempt to abolish the opportunities for coercion which prolonged detention without a hearing is said to enhance. But the federal rule does not arise from constitutional sources. The Court has repeatedly refused to convert this rule of evidence for federal courts into a constitutional limitation on the states. Gallegos v. State of Nebraska, 342 U.S. 55, 63-65, 72 S.Ct. 141, 146-147, 96 L.Ed. 86. Mere detention and police examination in private of one in official state custody do not render involuntary the statements or confessions made by the person so detained."
The prisoner argues the notation on the arrest sheet that he is to be held for Hucks and Festerman re Mrs. Cooper and not allowed to see or call anyone was a violation of his Due Process rights by the police department. The undisputed evidence, however, is the notation was made by the arresting officer on an envelope at the time of arrest and copied on the arrest sheet at the time the prisoner was placed in jail. The undisputed evidence as testified to by the chief of police is that no one in the department had authority to enter any such memorandum or order. Like-wise undisputed is the evidence of Captain McCall that the notation or order was not enforced. The prisoner asked to see his sister, whom the officers searched for, after some difficulty found, and delivered the prisoner's message. She appeared at the jail and Captain McCall admitted her to a private conference with the prisoner. In fact the prisoner does not even claim he requested or wanted to see any other person. The notation on the record, there-fore, becomes nothing more than an unauthorized and unenforced entry made by the arresting officer at the time of the arrest. There is no question about the right of the officer to make the arrest. Even a private citizen of the State "shall have authority to apprehend any convict who may escape before the expiration of his term of imprisonment whether he be guilty of a felony or misdemeanor, and retain him in custody and deliver him to the State Prison Department." G.S. § 148-40.
At all times after the arrest the defendant was the prisoner of the State under the custody and control of the Director of Prisons. G.S. § 148-4. The Charlotte officers gave the director prompt notice that they had the prisoner in custody. The director might have ordered the prisoner's return to the State's prison, in which case *372 the Charlotte officers would have been required to travel long distances in order to question him. Instead, the director authorized that he be held until they completed their investigation. The arrangement was one of convenience. The place of imprisonment was properly left to the director. The prisoner's term as a State's prisoner began and continued to run from the time of his arrest.
In reviewing a trial court's decision holding a confession voluntary, Federal appellate courts follow our State rule and accept the findings of the trial court if supported by competent evidence. This holding is based upon the ground appellate courts are not triers of the facts. In Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599, 603, 96 L.Ed. 872, the Supreme Court of the United States said: "This Court has frequently stated that, when faced with the question whether there has been a violation of the Due Process Clause of the Fourteenth Amendment by the introduction of an involuntary confession, it must make an independent determination on the undisputed facts (emphasis added) * * * We adhere to that rule."
The rule is stated in another way in Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801: "In the application of so embracing a constitutional concept as `due process,' it would be idle to expect at all times unanimity of views. Nevertheless, in all the cases that have come here during the last decade from the courts of the various States in which it was claimed that the admission of coerced confessions vitiated convictions for murder, there has been complete agreement that any conflict in testimony as to what actually led to a contested confession is not this Court's concern. Such conflict comes here authoritatively resolved by the State's adjudication."
The record on this appeal discloses the prisoner was arrested as an escapee with 15 years to serve. The State prison authorities authorized the Charlotte police to hold him in custody until they had completed their investigation into the suspicious character of some of the articles of clothing, ladies' panties, billfold and contents, etc. The officers first took him to Canton and Asheville where he was unable to identify the place where he claimed to have stolen these articles. The officers were searching especially for Bishel Buren Hayes whose social security, blood donation cards, etc., were in a billfold taken from the defendant. The prisoner's explanation that he got the billfold and contents from a railroad bum aroused suspicion. These matters were inquired into following the arrest. While it is fair to assume the prisoner from the first was a suspect in the Cooper case, he was not questioned about it until October 2. Four days later he confessed and the following day was specifically charged with the crime of murder. Counsel argue the prisoner's detention for 16 days without filing the murder charge violated Due Process rights, citing Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192; Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674; Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100. This, however, is not a case in which a prisoner was held without formal arraignment to determine the legality of his arrest or detention. It is a case in which the officers questioned the prisoner in lawful custody about crimes committed while he was at large as an escapee. Escape from a felony sentence is a felony. Larceny from the person is a felony.
The object of a preliminary hearing is to effect a release for one who is held in violation of his rights. Counsel's argument is answered by the Supreme Court of the United States in the case of United States v. Carignan, 342 U.S. 36, 72 S.Ct. 97, 99, 96 L.Ed. 48: "So long as no coercive methods by threats or inducements to confess are employed, constitutional requirements do not forbid police examination in *373 private of those in lawful custody or the use as evidence of information voluntarily given * * *. We decline to extend the McNabb fixed rule of exclusion to statements to police or wardens concerning other crimes while persons are legally in detention on criminal charges."
The record fails to disclose any violation of the prisoner's rights under the Due Process Clause of the Fourteenth Amendment. His assignment of error with respect thereto is not sustained.
Likewise without merit is the assignment based on the court's command to counsel to sit down and permit the witness (Lt. Sykes) to complete his answer without interruption, and the comment by the court that "this is not a Roman circus." The trial court did not thus express any opinion as to the facts in the case. It may be noted that it is the practice of some superior court judges to require counsel to remain seated at the counsel table when examining witnesses in order to facilitate orderly procedure. The idea is to prevent counsel from approaching too closely to the witness, especially when charging the witness with improper conduct. The prior exchange of comments between counsel and the witness justified the order.
Finally, the prisoner contends he should be awarded a new trial for failure of the court to charge the jury: "If the evidence produced in the trial for this case has proven to you beyond a reasonable doubt that the defendant murdered the deceased in the perpetration of a felony `crime against nature' and has failed to prove to you beyond a reasonable doubt that the deceased was murdered by the defendant in the perpetration of a felony `rape,' then it would be your duty to return a verdict of not guilty."
The bill of indictment as drawn required the State to satisfy the jury by the evidence beyond a reasonable doubt that the prisoner murdered Foy Bell Cooper in the perpetration or attempt to perpetrate the crime of rape in order to justify a verdict guilty of murder in the first degree.
Ordinarily the State is better advised if the bill of indictment is drawn in the form approved by this Court in State v. Kirksey, 227 N.C. 445, 42 S.E.2d 613. When the bill is drawn as thus approved, the State may make out a case of murder in the first degree by satisfying the jury from the evidence beyond a reasonable doubt the murder was "perpetrated by means of poison, lying in wait, imprisonment, starvation, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony." G.S. § 14-17. By specifically alleging the offense was committed in the perpetration of rape the State confines itself to that allegation in order to show murder in the first degree. Without a specific allegation, the State may show murder by any of the means embraced in the statute.
In the charge as given, to which no exception was taken, the court defined all essential elements of the offense charged, properly placed upon the State the burden of satisfying the jury "from the evidence and beyond a reasonable doubt the defendant on September 20, 1959, while perpetrating the crime of rape, as that term has been defined to you, or while attempting to perpetrate the crime of rape, as that term has been defined to you, upon one Mrs. Foy Bell Cooper, the defendant caused her death, that then it would be your duty to return a verdict of guilty." Then follows the charge as to the verdict of guilty with a recommendation that the punishment be for life in the State's prison. "In conclusion, the court again instructs you that in this case, depending on how you find the facts to be, bearing in mind the defendant has no burden of proof, the burden of proof remaining at all times upon the State of North Carolina, to satisfy you from the evidence and beyond a reasonable doubt as to each and every element necessary to *374 constitute the guilt of the defendant before you may enter any verdict of guilty, and you may return either one of three verdicts in this case; first, the verdict of guilty of murder in the first degree, * * * or 2, guilty of murder in the first degree with a recommendation of life imprisonment, * * * or, 3, you may return a verdict of not guilty."
The charge placed upon the State the burden of proving murder in the commission, or attempt to commit rape; otherwise the court instructed the jury to return a verdict of not guilty. The charge certainly was not unfavorable to the prisoner.
In view of the gravity of the verdict and judgment, we have not only reviewed all assignments of error, the reasons given and authorities cited in support, but in addition we have examined the record proper. In the trial we find
No error.
