
169 S.E.2d 851 (1969)
275 N.C. 575
STATE of North Carolina
v.
Alvis Thomas WILLIFORD and Boyd Baxter Squires.
No. 1.
Supreme Court of North Carolina.
October 16, 1969.
*854 Atty. Gen. Robert Morgan, and Staff Atty. Dale Shepherd, for the State.
Tharrington & Smith, Raleigh, for defendant Williford.
BRANCH, Justice.
Defendant's first assignment of error challenges the admission of the confession alleged to have been made by defendant to Officer J. L. Denning.
The test of admissibility is whether the statements made by defendant were in fact voluntarily and understandingly made. State v. Gray, 268 N.C. 69, 150 S.E.2d 1, cert. denied 386 U.S. 911, 87 S.Ct. 860, 17 L.Ed.2d 784; State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R.2d 1104; State v. Roberts, 12 N.C. 259.
Defendant contends, inter alia, that the purported confession was not voluntarily and understandingly made because of his physical and mental condition at that time. He relies upon the case of Beecher v. Alabama, 389 U.S. 35, 88 S.Ct. 189, 19 L.Ed.2d 35, where the defendant was shot in the leg while fleeing from the police. Immediately after the defendant was shot by the police officers, an oral confession was obtained by threats on his life accompanied by the firing of a rifle near his ear while he lay wounded on the ground. Later, he was questioned by two investigators after a morphine injection and while he was feverish and in pain. The medical assistant in charge told him to cooperate, and in the defendant's presence told the investigators to let him know if defendant "did not tell them what they wanted to know." The defendant was left alone with the investigators, and after a 90-minute "conversation" signed a written confession prepared by the officers similar to the one first signed at gunpoint. In holding the confession inadmissible, the U. S. Supreme Court said:
"The petitioner, already wounded by the police, was ordered at gunpoint to speak his guilt or be killed. From that *855 time until he was directed five days later to tell Alabama investigators `what they wanted to know,' there was `no break in the stream of events,' Clewis v. Texas, 386 U.S. 707, 710, 87 S.Ct. 1338, 18 L.Ed. 2d 423. For he was then still in pain, under the influence of drugs, and at the complete mercy of the prison hospital authorities. Compare Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948.
"* * * A realistic appraisal of the circumstances of this case compels the conclusion that this petitioner's confessions were the product of gross coercion. Under the Due Process Clause of the Fourteenth Amendment, no conviction tainted by a confession so obtained can stand."
The distinctions between Beecher v. Alabama and the facts of the instant case are obvious. In Beecher v. Alabama, there is an unbroken stream of events that reek of intimidation, threat and coercion calculated to frighten and obviate the free will of the defendant. The only apparent similarity between the two cases is the fact that defendant was wounded and gave the statement to police officers while in custody.
The weight of authority appears to be that the admissibility of a confession is not, ipso facto, rendered involuntary because defendant was suffering from physical injuries and resulting pain at the time he made the confession. These are circumstances to be taken into consideration by the jury in weighing the evidence. State v. Horner, 139 N.C. 603, 52 S.E. 136; State v. Hamson, 104 N.H. 526, 191 A.2d 89; State v. Dolan, 86 N.J.L. 192, 90 A. 1034; State v. Wise, 19 N.J. 59, 115 A.2d 62.
It is further well settled in this jurisdiction that a confession is not rendered involuntary and incompetent by the mere fact that at the time of making it defendant was in prison or under arrest. State v. Crawford, 260 N.C. 548, 133 S.E. 2d 232; State v. Thomas, 241 N.C. 337, 85 S.E.2d 300. It is the mental condition and compulsions that control when a confession is given. The confessor's physical condition is of little consequence unless it so affects his mental condition as to destroy voluntariness or understanding. Thus, we hold that the confession did not become inadmissible solely upon the showing that defendant was wounded, in pain, and confessed while in police custody.
In connection with the admission of the purported confession, the defendant assigns as error the court's failure to strike the confession, in light of testimony given by police officer R. L. Johnson before the jury and after the voir dire hearing, and the court's ruling on the admissibility of the confession. Pertinent to this contention is the testimony of Officer Johnson that defendant told him, before he allegedly made the confession, "I am not going to tell you you a damn thing." Defendant contends that the officers were then precluded from further questioning by that portion of the opinion in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, which states: "Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him."
It has long been the rule in this state that the admissibility of a confession is to be determined by the facts appearing in evidence when it is received or rejected, and not by facts appearing in evidence at a later stage of the trial. State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R.2d 1104; State v. Richardson, 216 N.C. 304, 4 S.E. 2d 852. Doubt has been cast upon this position by cases which hold that when the involuntariness of a confession is conclusively demonstrated, a defendant is deprived of due process by admission of a confession even though important evidence regarding involuntariness was introduced after admission of the confession. Black-burn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242; Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 58 S.Ct. 443, 82 L.Ed. 685.
*856 The facts of the instant case do not require that we resolve this doubt since it does not appear that the testimony of Officer Johnson conclusively demonstrated that defendant's confession was involuntary or that defendant was deprived of due process. The record indicates that this statement was addressed solely to Officer Johnson, who immediately terminated his conversation with defendant. The ensuing events seem to imply that, for some unknown reason, defendant did not desire to tell Officer Johnson anything. Apparently, the defendant, without coercion or intimidation of any kind, talked with the other police officers.
However, a more serious question is presented by defendant's assignment of error and contention that the trial court failed to make sufficient findings of fact to support his conclusions of law. In State v. Barnes, 264 N.C. 517, 142 S.E.2d 344, Higgins, J., speaking for the Court, stated: "Under present procedures it is essential not only that a full investigation be made and the evidence recorded, but the facts must be found which disclose the circumstances and conditions surrounding the making of the incriminating admissions."
In the instant case the trial judge properly excused the jury and heard evidence from both the State and defendant on the question of whether the alleged confession was voluntarily and understandingly made. State v. Gray, supra; State v. Rogers, supra.
At the conclusion of the voir dire hearing the trial judge found the following facts:
"* * * The Court finds that Officer Jimmy A. Mohiser and Officer J. L. Denning were present together on December 6, 1966 in the bus on Fayetteville Street with the defendant Williford; that on the bus on Fayetteville Street Officer Mohiser advised the defendant Williford prior to asking him any questions and prior to any admission or statement having been made by the defendant Williford, that anything that the defendant Willifordstrike thatthat the defendant Williford had the right to remain silent and that anything the defendant Williford said could be used against him and that he further advised the defendant Williford that he had the right to consult with a lawyer and to have the lawyer with him during interrogation and further that he advised the defendant Williford that if he were unable to secure a lawyer by reason of indigency, that a lawyer would be appointed for him; that the Court further finds that Officers Mohiser and Denning were in the presence of the defendant Williford some 30 or 40 minutes later at Wake Memorial Hospital at which time the defendant Williford made certain statements and admissions to Officer J. L. Denning * * *."
Based on these findings the trial judge concluded that "the statements made by the defendant Williford to Officer J. L. Denning at Wake Memorial Hospital were made voluntarily and with understanding * * *."
There were no findings of fact as to the immediate circumstances and conditions surrounding the making of the purported confession. Findings of fact as to defendant's mental or physical condition were conspicuously absent. The failure to make these findings is highlighted by the voluminous evidence as to defendant's physical condition and by defendant's testimony that he had no recollection of making any statement. His contention that he did not know he had made a statement strikes at the very heart of the rule that to be admissible a statement offered in the nature of a confession must have been "voluntarily and understandingly made." (Emphasis ours.) Clearly the evidence in the case sustains the facts found; however, the findings of fact are not sufficient to support the conclusion that the statements made by the defendant Williford to Officer J. L. Denning at Wake Memorial Hospital were made voluntarily and with understanding.
*857 The admission of the statement made by defendant was prejudicial. There seems to be plenary evidence to present a strong case against defendant without the purported confession; but the question of law for this Court is not whether there was sufficient admissible evidence to convict, but whether incompetent evidence of a prejudicial nature was admitted over objection. State v. Squires, 272 N.C. 402, 158 S.E.2d 345.
Any extra-judicial statement of an accused is a confession if it admits defendant's guilt of an essential part of the offense charged. State v. Hamer, 240 N. C. 85, 81 S.E.2d 193. The statement made by defendant admitted that he was "in on the robbery" and related the manner in which it was planned. His defense upon trial was that he was not "in on the robbery," that he knew nothing of its plan and was forced to take part in the robbery by an armed stranger.
Defendant further assigns as error this portion of the court's charge:
"* * * so, gentlemen of the jury, if the State has satisfied you from the evidence in this case beyond a reasonable doubt, the burden being upon the State so to do that on December the 6th, 1966, at about 5:30 or 5:45 o'clock p. m., the defendants, Boyd Baxter Squires and Alvis Thomas Williford, `or either of them,' entered ABC Store #4 in the City of Raleigh and that in said store with the use of a sawed-off shotgun, which gun was at the time actually in the possession of the defendants or one of them, and that the defendants at the time and place aforesaid feloniously took and stole an amount of money, which money was in the possession or custody of James Walter Edwards or Thomas R. Freeman, as employees of said ABC Store, and that said sum of money was taken from the persons of or in the presence of the said Edwards or Freeman without the consent of or against the will of the said Edwards or Freeman and that such money was taken by violence, intimidation or by putting said Edwards or Freeman in fear by use of or the threatened use of said shotgun or other dangerous weapons and if the State has further satisfied you from the evidence and beyond a reasonable doubt that at said time and place the defendants or either of them acted with the specific felonious intent to take and steal said money and thereby deprive the owner or owners thereof permanently of such money and to convert said money to their own use, that is to the use of the defendants, then it would be your duty to return a verdict of guilty against the `defendants' of the charge of armed robbery in violation of the provisions of Section 87 of Chapter 24 of the General Statutes as charged in the Bill of Indictment in this case."
Defendant contends that this portion of the court's charge led the jury to believe that the guilt or innocence of both defendants would rest or fall upon the guilt or innocence of either of them.
In the case of State v. Wolfe, 227 N.C. 461, 42 S.E.2d 515, the trial court charged:
"`Like every other person who is put upon trial and charged with the commission of a crime, they are both presumed to be innocent, (and before you can return a verdict against them or either one of them, upon either one of these charges, it is necessary for the State to offer evidence which satisfies you beyond a reasonable doubt of the guilt of one or both of them.)'
"`If you find from the evidence and beyond a reasonable doubt that these two defendants, or either one of them, broke the door and went in the house, as contended by the State, that is, that there was a forcible entry of the house with intent at the time to commit an assault upon Jasper Best, it would be your duty to convict them upon that count of housebreaking.'"
*858 Holding this to be prejudicial error, the Court stated:
"Thus the jury was directed that if they found, beyond a reasonable doubt, that there was a felonious breaking and entering by either defendant they should return a verdict of guilty as to both. Certainly this conclusion is reasonably implied. Hence the vice in the instruction lies in the fact that the guilt of both was made to depend upon the guilt of either. State v. Walsh, 224 N.C. 218, 29 S.E.2d 743."
See also State v. Walsh, 224 N.C. 218, 29 S.E.2d 743, and State v. Meshaw, 246 N.C. 205, 98 S.E.2d 13.
This assignment of error is well taken, as the sense of this instruction is that the jury should convict both defendants if either of them committed the crime of armed robbery. This is prejudicial error.
For errors indicated there must be a
New Trial.
