
199 S.E.2d 459 (1973)
284 N.C. 76
STATE of North Carolina
v.
John Lee EDWARDS.
No. 20.
Supreme Court of North Carolina.
October 10, 1973.
*461 Robert Morgan, Atty. Gen., by Ralph Moody, Sp. Counsel, Raleigh, for the State.
F. Lloyd Noell and Robert L. Satterfield, Hillsborough, for defendant.
HIGGINS, Justice.
The critical question of law presented on this appeal is the legal admissibility of the defendants' oral confession made to Officer Cohoon in the courthouse in Hillsborough on December 2, 1971. The State contends the court was correct in holding that "[T]he two months and some few days which the defendant was away from Orange County and in Cherry Hospital had washed out the effects of the first two confessions [at Chapel Hill and at Hillsborough] and that the last confession the defendant made [December 2, 1971] was voluntary and proper." The argument is the defendant was away from the investigating officers and their influence over him had dissipated.
The State's argument would have more weight if different officers had conducted the December 2nd interrogation. But the same officers who obtained the midnight confession in Chapel Hill and a verification in the presence of Mr. Noell in Hillsborough, again confronted him on the first day of his return. Even a retarded eighteen year old had mind enough to know Mr. Cohoon still had his written confession. It seems fair to assume from the officers' rush to get another confession that the prosecution had misgivings about the validity of those previously made. Otherwise, there would be no necessity for an oral confession since the officers already had a written one. Actually, the December interrogation and its results were but a continuation of the State's investigatory procedures which took place before the first trial. The officers neither surrendered the written confession, nor informed the defendant that it would not be used against him. The foregoing, or something like it, seems to be necessary in order to remove the taint from the results of any follow-up interrogation.
The vice in this December 2nd confession is the utter failure of the officers to disclose to this "middle degree" retarded defendant that his prior written confession was illegally obtained, could not be offered in evidence, and that they were endeavoring to obtain additional admissions which could be used against him in court. Judge Webb concluded that the time interval of sixty-three days away from Orange County was sufficient to remove the illegality which tainted the results of the prior interrogations.
In State v. Fox, 274 N.C. 277, 163 S.E. 2d 492, this Court held: "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." To the same effect are a number of cases. State v. Stevenson, 212 N.C. 648, 194 S.E. 81; State v. Moore, 210 N.C. 686, 188 S.E. 421.
In State v. Hamer, 240 N.C. 85, 81 S.E. 2d 193, Justice Ervin used this language: "Where a confession has been obtained under circumstances rendering it involuntary, any subsequent confession is presumed to proceed from the same vitiating influence, and the burden is on the State to establish the voluntary character of the subsequent confession before it can be received in evidence."
In State v. Gibson, 216 N.C. 535, 5 S.E. 2d 717, Chief Justice Stacy stated the rule: "It is established by numerous decisions that where a confession has been obtained under such circumstances or by such methods as to render it involuntary, a presumption arises which imputes the same prior influence to any subsequent confession of the same or similar facts, and this presumption must be overcome before the subsequent confession can be received in evidence.. . . Especially is this so, when the court is then cognizant of the fact that the accused has made a prior involuntary confession."
*462 2 Wharton, Criminal Evidence, 63, Sec. 359 (12th Ed. 1955), states the rule: "It has also been held, generally, that the influence of the improper inducement is removed when the accused is properly cautioned before the subsequent confession. The warning so given, however, should be explicit and it ought to be full enough to apprise the accused (1) that anything he may say after such warning can be used against him; and (2) that his previous confession, made under improper inducement, cannot be used against him." Citing many cases including: State v. Gregory, 50 N.C. 315; State v. Scates, 50 N.C. 420; People v. Jones, 24 Cal.2d 601, 150 P.2d 801; Williams v. United States, 328 F.2d 669 (5th Cir. 1964).
The presumption of continuing taint is not conclusive, but the admissibility of the later confession must be established by evidence. In this connection, the language of the Court in Williams v. United States, supra, is pertinent: "[T]he most important fact touching on the validity of the oral admissions made after the men had been returned to Fort Worth, was their knowledge that they had already signed a written confession in full, and their lack of knowledge that this confession could not be used against them. . . We have no doubt that under the circumstances here present there was a burden on the government, before the acceptance of further oral admission or confession from the accused, to inform them that the origiual written confessions would not be offered or used against them."
The defendant in this case made the oral confession to the officers who had taken the prior invalid written one and the record does not contain a suggestion that the defendant was advised that the written confession was invalid or that it could not be used against him. The officers evidently suspected the invalidity, otherwise there would appear to be no need for further questioning.
Under the circumstances disclosed by this record, we are forced to conclude that the evidence before Judge Webb was insufficient to warrant the admission of the December 2, 1971 confession. Its admission constituted prejudicial error entitling the defendant to go before another jury.
The Court has heretofore held invalid the written confession signed in Hillsborough on September 25, 1971, and now invalidates the oral repeat made to the same officers on December 2, 1971.
The exclusion of these confessions may present a problem to the prosecution. The admission of incompetent evidence, however, is not the proper solution of the problem.
New Trial.
