
158 S.E.2d 345 (1968)
272 N.C. 402
STATE of North Carolina
v.
Boyd Baxter SQUIRES and Alvin Thomas Williford.
No. 505.
Supreme Court of North Carolina.
January 12, 1968.
*347 T. W. Bruton, Atty. Gen., Millard R. Rich, Jr., Asst. Atty. Gen., for the State.
Vaughan S. Winborne, Raleigh, for defendants appellants.
HIGGINS, Justice.
The appellant has assigned numerous errors in the admission of evidence and in the Court's charge. We discuss herein only Assignments 4, 7 and 11. We do not intimate that other assignments are non-meritorious.
By Assignment No. 4, the appellant challenges the admission of the box of 12 gauge shotgun shells loaded with No. 1 buckshot taken from Squires' room at the Andrew Johnson Hotel, which the officers searched without a warrant. Officer Goodwin testified he and Officer Johnson went to Room 318 and found the door locked "* * * I searched the room * * * I found clothing, personal papers, shotgun shell number one buck, 12 gauge. * * *" The shells were similar in size and loads to the two found in the gun at the scene of the holdup and which were introduced in evidence as State's Exhibit No. 6. The appellant objected to the introduction of the shells found in Room 318 on the ground they were obtained as a result of an illegal search. The objection should have been sustained.
*348 This Court, in State v. Mills, 246 N.C. 237, 98 S.E.2d 329, opinion by Parker, J. (now C. J.), stated: "`A rooming house is also protected against unreasonable searches and seizures, as is a person's room in an apartment house, hotel, rooming or boarding house, or in a tourist camp.'" The officers had no right to enter and search appellant's room without a warrant authorizing the search. The shells obtained by the unlawful search were inadmissible in evidence. Since the shells found in the room appeared to be identical to those with which the sawed off shotgun was loaded, the effect of the admission of the box of shells was devastating. Assignment of Error No. 4 is sustained.
Tied in with Assignment No. 4 is Assignment No. 11, which involves the Court's charge recapitulating the evidence. "* * further, that Officer Johnson saw or observed a box of shotgun shells in the defendant Squires' room, that is in Room 318 in the Andrew Johnson Hotel and that these gun shells seen by Officer Johnson are similar in appearance to the two shotgun shells designated as State's Exhibit Six."
Assignment of Error No. 7 involves the testimony of Officer Denning and the Court's recapitulation of that evidence concerning the admissions made by Williford in the hospital. At the time of Williford's arrest on the bus, the warning as to his rights was given. At that time he declined to talk about anything except his wounds. At the time of the admissions, Williford was on a stretcher in the emergency room, being administered glucose, bleeding and calling for water. In this condition, shortly after the shooting, the officer obtained from him the admission about which Officer Denning testified. The evidence came into the case in this way:
"SOLICITOR: Just tell us from start to finish what he told you.
A. He stated that he didn't know the man by name, had been knowing him about three days, had just gotten out of prison and all he knew he called him Joe.
Objection and move to strike.
COURT: Overruled.
EXCEPTION.
A. The man was wearing a hat and glasses; he stated that the man * * * lived in the Andrew Johnson Hotel * * * in Room 318. I asked him as to what kind of car the other person had, he stated that he had a Rambler with a white top and a dark bottom.
Objection by Squires.
COURT: I don't see that it implicates him. * * * Gentlemen, insofar as this testimony may tend to implicate * * * Squires, I instruct you that you will disregard it."
Thereafter, the State offered evidence that Squires' room in the Andrew Johnson Hotel was No. 318 and that he had a Rambler automobile with a white top and a black bottom.
Conceivably we might be justified in saying the instruction to the jury to disregard the evidence would cure the error, but for the Court's recapitulation of evidence in the charge in these words: "That defendant Williford told officer Denning that the man who was with him at the liquor store lived in Room 318 at the Andrew Johnson Hotel and that this man owned a Rambler automobile and that he knew this man only as Joe; that he, the defendant Williford, and the man known as Joe walked to the ABC store from the hotel and that they had planned to walk back to the hotel after the robbery. And the State offered further evidence which tends to show that after their conversation * * * Officer Denning immediately called and related Williford's statements to the radio officer at the Raleigh Police Department." At the time Williford's testimony was admitted, the Court intimated the evidence did *349 not implicate Squires. That is true, but later on the other evidence bridged the gap and made Williford's statements very material.
While the Court, in other parts of the charge, referred to Williford's admissions to the officer, not once in the charge did the Court instruct the jury that Williford's statements made to the officer, and related by him to the jury, did not constitute evidence against Squires. Williford's admissions only incidentally involved himself. Their main thrust was against Squires. True there was direct and positive evidence by three eye witnesses that Squires was the man with the sawed off shotgun, wearing a raincoat, hat and glasses, participating in the holdup. That evidence was clear of taint. 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. The Court does not weigh the evidence. That is the function given to the jury. Whether evidence has any weight is a matter of law for the Court. If it has weight, the jury must manipulate the scales. State v. Bell, 270 N.C. 25, 153 S.E.2d 741; State v. Williams, 255 N.C. 82, 120 S.E.2d 442.
Williford testified he was in the ABC store at the time one unknown to him entered with a shotgun and forced him to take the money from the cash register. Squires testified he was neither present nor participated, nor had any knowledge of the offense charged. The main issue was whether Squires was present and participating. The resolution of that issue required the jury to weigh the evidence. The jury assumes, and has a right to assume, all evidence admitted is competent unless and until the Court effectively removes from their consideration all imcompetent evidence which the Court has permitted them to hear. "The jury cannot exercise the prerogative of the judge; the judge cannot exercise the prerogatives of the jury. The two are distinct, and neither has a right to invade the field of the other." State v. Fogleman, 204 N.C. 401, 168 S.E. 536.
In this case the Court permitted the jury to weigh against the appellant the hearsay evidence of Officer Denning, quoting Williford. The State offered testimony of three eye witnesses to all the essential elements of a robbery with firearms. Their identity of the appellant as one of the participants was unequivocal. With that sort of evidence, the Solicitor was poorly advised when he jeopardized the trial by offering the hearsay statements made by Williford after his arrest and while he was undergoing emergency treatment for serious gunshot wounds. He had first refused to talk. Our cases, long before recent pronouncements of other courts, have held that confessions must be voluntary to be admissible. This Court stated that rule 100 years before Miranda was born. State v. Roberts, 12 N.C. 259; State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R.2d 1104; State v. Davis, 253 N.C. 86, 116 S.E.2d 365. The latter case was reversed by the United States Supreme Court, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895.
The Solicitor likewise used bad judgment in placing in evidence the box of shotgun shells taken from the appellant's locked room at the Andrew Johnson Hotel, by officers who were not equipped with proper process to force entry into that room. For the errors herein discussed, the appellant is entitled to and is awarded a
New trial.
