State v. Jackson

232 S.E.2d 407 (1977)

292 N.C. 203

STATE of North Carolina v. Audwin Brent JACKSON.

No. 1.

Supreme Court of North Carolina.

March 7, 1977.

*410 Rufus L. Edmisten, Atty. Gen. by Ben G. Irons II, Associate Atty., Raleigh, for the State.

Charles V. Bell, Charlotte, for defendant.

LAKE, Justice.

It is well settled that, upon a motion to suppress evidence, the proper procedure *411 is for the judge, in the absence of the jury, to hear the evidence and make findings of fact upon which the admissibility of the allegedly incompetent evidence depends. His findings of fact, if supported by competent evidence, are conclusive on appeal. State v. Thompson, 287 N.C. 303, 214 S.E.2d 742 (1975); State v. Pruitt, 286 N.C. 442, 212 S.E.2d 92 (1975); State v. Gray, 268 N.C. 69, 150 S.E.2d 1, cert. den., 386 U.S. 911, 87 S. Ct. 860, 17 L. Ed. 2d 784 (1967); State v. Hines, 266 N.C. 1, 145 S.E.2d 363 (1965). Quite obviously, the findings of fact made by Judge Bailey, which the defendant assigns as error, were amply supported by competent evidence. There is, therefore, no merit in this assignment of error.

The record on appeal does not indicate whether the defendant testified before the jury in his own behalf or, if so, whether he then adhered to his denial that he made the incriminating statements attributed to him by Mr. DeSoto and Mr. Crumpler. If he did so testify before the jury, this conflict between his testimony and that of the witnesses for the State, assuming that they testified before the jury as to the making of such statements by the defendant, simply raised a question of fact for the jury which determined that matter in favor of the State.

The findings of fact made by Judge Bailey concerning the voluntary nature of the statements made by the defendant to Mr. DeSoto and Mr. Crumpler being conclusive upon appeal, there was no error in admitting the inculpatory statements by the defendant into evidence before the jury, assuming that they were so admitted. Consequently, there is no merit in the defendant's second assignment of error.

NO ERROR.