
142 S.E.2d 177 (1965)
264 N.C. 559
STATE
v.
James Clarence HALL.
No. 1.
Supreme Court of North Carolina.
June 2, 1965.
*178 T. W. Bruton, Atty. Gen., Richard T. Sanders, Asst. Atty. Gen., for the State.
John W. Graham, Edenton, for defendant appellant.
HIGGINS, Justice.
The record comes to us in a condensed form as a pauper appeal. The evidence is somewhat equivocal as to the caution given by the officers to the defendant that he had a right to remain silent and was not required to answer questions, or that any statement he made might be used against him in court. On the other hand, the defendant's objections appear somewhat by inference. However, enough appears to warrant the trial court in finding the defendant was advised of his right to refuse to incriminate himself and likewise require this Court to consider the fundamental question whether, under the circumstances disclosed by the evidence, the wife could consent to a search of the defendant's dwelling without a search warrant and thereby permit the State to use the results of that search to convict the defendant. State v. Elam, 263 N.C. 273, 139 S.E.2d 601; Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.
This is the factual background leading up to the search of the defendant's dwelling: The defendant was in jail. This the officers knew. They neither requested *179 nor received his permission to make the search. The officers, no doubt, suspected they might turn up something incriminating. They went to the house, confronted the defendant's wife with their identity as officers, and asked the privilege of searching the house. Nothing in the evidence indicates the officers had sufficient information to enable them to make the affidavit necessary to authorize the court to issue a search warrant. There is some question as to the extent the officers left the wife free to consent to the search, or whether the number of officers had a coercive effect sufficient to make her consent involuntary. Amos v. U. S., 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654. The circumstances did not suggest to her anything better that she could do in the presence of so much "law" at a time when they had her husband in jail. The officers confronted the defendant with the clock and radio. He then admitted his guilt. Unless proper authority existed for the search of the dwelling, the search was unlawful. The protection extends to the justly as well as to the unjustly accused. State v. Mills, 246 N.C. 237, 98 S.E.2d 329; In Re Walters, 229 N.C. 111, 47 S.E.2d 709; Agnello v. U. S., 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145. An unlawful search does not become lawful by the discoveries which result from it. Fourth and Fifth Amendments to the Constitution of the United States; Article I, Section 15, North Carolina Constitution; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.
If it be deemed the wife's consent as far as she was able to give it, was voluntary, we are still confronted with the question whether she was authorized to give her husband's consent to the search. The courts are not in agreement on this question. Divergent views are discussed and authorities cited in 47 Am.Jur., Search and Seizure, § 72:
"The decisions are in conflict as to the implied authority of one spouse to consent to a search of the property of the other. In a number of cases, representing the weight of authority, it has been held a wife has no implied authority in the absence of her husband, to consent to a search of his property. So, also, a waiver of his constitutional right against unlawful search made by a husband has been held not to affect the rights of a wife as to property owned by her. But assuming that it is possible for a wife, in the absence of her husband, thus to waive his constitutional right against unreasonable search and seizure, under the doctrine of implied coercion mere acquiescence in a search of his premises by officers having an insufficient warrant will not render lawful a seizure by them. Upon the same assumption, a wife's admission of officers without a search warrant to her husband's premises upon their demand under alleged governmental authority that they be allowed to enter has been held not to effect a waiver of the husband's constitutional rights. In other cases, the view has been taken that the wife has authority, in the absence of her husband, to permit the search." See, also, 31 A.L.R.2d 1078.
This Court seems not to have passed on the right of the wife to consent to a search of a husband's dwelling. The majority view seems to fit in with our concept of the defendant's rights. We hold the wife's consent to the search was not sufficient to waive the husband's constitutional right to be "Secure * * * against unlawful search and seizures." We hold, therefore, that the possession of the radio and clock were unlawfully obtained. They were improperly admitted in evidence.
The stolen truck was recovered as a result of the admissions of the defendant and not as a result of the illegal search. Evidence with respect to the truck was not subject to the objections interposed against the admission of the clock and radio. However, the confession which led to its recovery was not made until the officers confronted the defendant in jail with the clock and radio which they had obtained as a result *180 of a search which had violated his rights. At the next trial the court may determine whether the confession was actually free and voluntary or whether it was triggered by the use the officers made of the fruits of their illegal search to such an extent as to render it inadmissible in evidence.
The defendant's counsel has argued that the State's case against the defendant must fail when the radio and clock recovered by the illegal search and the confession which led to the recovery of the truck are excluded; and that this Court should order the case dismissed. However, the admission of incompetent evidence, as in this case, entitles the defendant to a new trial but does not work a dismissal of the case. The State may be able to offer sufficient competent evidence at the next trial. State v. Littlejohn, decided this day. For the reasons assigned, the Court holds the defendant is entitled to a
New trial.
SHARP, J., dissents.
