
    STATE v. ERNEST LOWRY and GEORGE POSTON.
    (Filed 1 December, 1915.)
    1. Homicide — Confessions—Threats of Lynching- — Consequent Pacts.
    Confessions of murder made by the accused, under threats of lynching, of which he was aware, will not be received in evidence against him on the trial, though incriminating matters brought to light in consequence thereof are competent, as, in this case, where robbery as well as a homicide was committed, the finding of identified money, the bloody stick used, and the stem and roots of the bush from which the stick had been cut, bearing upon other evidence tending to fix the crime upon the accused.
    2. Homicide — Evidence1—Voluntary Confessions.
    Voluntary confessions of murder made by the accused to the officer in charge, while in jail, are competent evidence against him on the trial; and this rale of evidence is not affected hy the fact that the prisoner had previously made confessions, in another State, of the crime, when threatened with being lynched there.
    S. Same — Several Prisoners — Competency as to Each.
    Voluntary confessions made by two prisoners accused of murder are competent as evidence upon the trial when confined by the court to the prisoner making them, or made by one in the presence of the other.
    4. Court’s Discretion — Separation oí Witnesses — Witness Sot Separated — Evidence.
    Where the court has ordered the witnesses separated on the trial for a homicide, and permits a witness for the State to remain in the courtroom while the others were testifying, and then give his evidence, the act of the court in so doing is a matter within its discretion, and not reviewable on appeal.
    5. Evidence — Footprints—Admissions—Corroboration.
    Evidence of the identity of tracks made at the' scene of the crime with those made by the accused, being tried for murder, is competent, especially when corroborated by his confession.
    6. Evidence — Motions to Strike Out — Appeal and Error — Objections and Exceptions — Court’s Discretion.
    It was discretionary with the trial judge to refuse to strike out testimony which has been admitted without objection, on the ground urged for error; and where money had been found at a certain house in consequence of a confession previously made by the prisoner on trial for murder, and the fact was relevant to the inquiry, a question asked by the court, assuming that the prisoner hid it there, and without objection at the time, except on a different ground than that urged on appeal, will not be held as reversible error.
    Appeal by defendants from Lane, J., at May Term, 1915, of G-astoN.
    
      Attorney-General Bickett and Assistant Attorney-General Calvert for the State.
    
    
      Bulwinlde & Cherry and G. B. Mason for prisoners.
    
   Clark, C. J.

Tbe prisoners were convicted of tbe murder, in tbe first degree, of Grant Davis on Sunday afternoon, 7 March, 1915. There was evidence that tbe deceased shortly before tbe homicide bad received money for bis cotton crop, part of it in new bills of tbe King’s Mountain Bank; that tbe prisoners bad been at bis bouse shortly before tbe day of tbe murder, and that on tbe afternoon of tbe homicide tbe deceased, with $300 on bis person, left bis bouse with one John Adams; that John Adams, as was testified by him and others, parted from tbe deceased before tbe prisoners met him, and be was seen no more alive; bis body being discovered on Wednesday concealed in a brush pile, to which it bad been dragged, with bis bead badly beaten in. There was no money, on tbe body when found, except 15 cents. There were two tracks besides those of tbe deceased going to tbe place of homicide, which tracks were identified as those of tbe prisoners. The prisoners confessed that tbe tracks were made by them, and that be was killed by one of them witb a stick, tbe other bolding tbe deceased. They told where they bad cut tbe stick and where they bad bidden it behind a log, and in consequence of this information the officers found and brought into court the stump from which the stick had been cut, and also found the stick where they said that it was hidden, with human blood on it. The prisoners on the night of the next day (Monday) took the train and were seen in the possession of considerable money when they bought their tickets, though their employers testified that they had no money, but had borrowed a small sum the day before from them. It was also in evidence that the prisoners had each given $10 apiece in new bills to their wives, which was found in the possession of the wives. The prisoners were pursued and found at Armour, Ga., and made confessions, which, however, the judge ruled out, as there was evidence that threats of lynching had been made, to the knowledge of the prisoners. But the court permitted the officers to testify that in consequence of what was said they found $60 hidden under a mattress in a house, which consisted of new bills of the Bank of King’s Mountain, and they also found other money on the persons of the prisoners, who each had bought a watch and new clothes. On the way back, at Atlanta, Ga., and at Spartanburg, there were some threats made by bystanders. After the prisoners were lodged in the Gaston County jail they confessed to the murder and attendant circumstances to an officer, without any threats or inducements on his part, and they also made confessions as to tbe tracks and stick, cutting and hiding the stick with which the murder was committed and the commission of the murder, to a fortune-teller who was in jail with them, which coincided, as above stated, with the facts on investigation; and there was testimony of another prisoner in j ail to confessions. by both these prisoners.

The judge instructed the jury, as to these confessions, that they were only competent against the person making them, the other not being present at the time. Both prisoners made confessions which were held competent only against the party making it. But there were also confessions made when both prisoners were present, and these were admitted. There was in evidence confessions to John Adams before the prisoners left for Georgia.

The prisoners did not testify in their own behalf and did not introduce any evidence. The prisoners contended, first, that the finding of the money in consequence of the confessions at Armour, Ga., which confessions were ruled out on account of threats by bystanders, rendered incompetent the evidence of the officers that they found the money bidden in the house; and they made the same objection as to the evidence that in consequence of the confessions in the jail at Gastonia the officers followed tbe tracks and found tbe’bloody stick and tbe stump from wbicb it bad been cut.

Aside from tbe fact tbat tbe latter confessions were voluntary, it bas been beld uniformly in tbis Court tbat tbougb confessions made in consequence of threats or inducements must be excluded, tbis does not render incompetent tbe discovery of incriminating evidence in consequence of sucb confessions.

“Where an involuntary confession discloses incriminating evidence wbicb is subsequently on investigation proved to be true, or where tbe confession leads to tbe discovery of facts wbicb in themselves are incriminating, so much of tbe confession as discloses tbe incriminating evidence and relates directly thereto is admissible. And tbe facts discovered in consequence of sucb involuntary confession may be proved.” 12 Oye., 478. In S. v. Graham, 74 N. C., 646, where tbe prisoner bad been compelled by tbe officer to put bis foot in tbe tracks, it was beld competent to prove tbat bis foot fitted tbe tracks perfectly, tbe Court saying: “Tbe object of all evidence is to elicit tbe truth. Confessions wbicb are not voluntary, but are made either under tbe fear of punishment if they are not made, or in tbe hope of escaping punishment if they are made, are not received a;s evidence, because experience shows tbat they are liable to be influenced by these motives, and cannot be , relied on as guides to tbe truth. But tbis objection will not apply to evidence of tbe sort before us. No fears or hopes of tbe prisoner could produce tbe resemblance of bis track to tbat found in tbe cornfield. This resemblance was a fact calculated to aid tbe jury, and fit for their consideration. Evidence of tbis sort is called by tbe civilians ‘real evidence,•" is always admissible, and is of greater or less value according to tbe circumstances.” Tbis bas always been beld in tbis State, and indeed everywhere.

S. v. Graham, supra, bas been often cited and approved, among other eases, in S. v. Lindsey, 78 N. C., 501, where it was beld tbat tbougb a confession might be excluded on account of duress, it was competent to show tbat in consequence of what tbe defendant said tbe officer found tbe stolen property at tbe point mentioned, as finding tbe money under tbe mattress in tbis case.

In S. v. Winston, 116 N. C., 992, it was beld tbat “tbis doctrine is well settled in tbis State.” S. v. Graham was also quoted in S. v. Mallet, 125 N. C., 725, wbicb case on writ of error was approved by tbe United States Supreme .Court in Mallett v. North Carolina, 181 U. S., 589, which cites S. v. Graham, supra, with approval. Tbis United States decision is printed in 128 N. C., 619.

Tbe same doctrine was stated in S. v. Moore, 2 N. C., 483 ; S. v. Garrett, 71 N. C., 85, and in many other casés, among them as recently as S. v. Thompson, 161 N. C., 241.

Tbe prisoners also except to tbe declarations made to tbe officer in tbe jail after tbe return of tbe prisoners because of tbe threats made down in Georgia. Tbe Georgia confessions were ruled out. But tbe confessions in Gastonia were voluntary and competent, and there is nothing that refers them to fear caused by what happened in Georgia. Indeed, while in jail tbe prisoners made full confession to tbe fortuneteller and also to another prisoner.

Tbe prisoners also except because after tbe court bad made an order that no witness for tbe State or for tbe prisoners should be allowed in tbe courtroom during tbe trial, a witness for tbe State who remained in tbe courtroom was permitted to testify. Tbe prisoners moved for a nonsuit on that ground, and also to set aside tbe verdict, and excepted to tbe denial of these motions. But it is a matter in tbe discretion of tbe court whether such witness shall be examined or not. 12 Cyc., 547. Tbe same point was made in S. v. Hodge, 142 N. C., 676, and it was held that this was a matter which rested in tbe discretion of tbe presiding judge. Tbe same ruling was made in S. v. Sparrow, 7 N. C., 487, and Purnell v. Purnell, 89 N. C., 44, and is stated as settled law in tbe text-books, 1 Greenleaf Ev., secs. 431 and 432 and notes, and 2 Bishop New Criminal Proceedings (2 Ed.), secs. 1191 to 1193 a.

Tbe confessions made to tbe officer at Gastonia, being voluntary, were not incompetent merely because tbe prisoners were in custody or in jail, and not even if they bad been in handcuffs, which does not appear to have been tbe case here. S. v. Whitfield, 109 N. C., 876, citing several cases, and which has been cited since with approval in S. v. Edwards, 126 N. C., 1052; S. v. Horner, 139 N. C., 606. To same effect, S. v. Smith, 138 N. C., 700 ; S. v. Bohanon, ib., 695; S. v. Jones, 145 N. C., 466, and many others.

Evidence as to tbe identity of tracks was competent. S. v. Graham, 74 N. C., 649 ; S. v. Reitz, 83 N. C., 636; S. v. Daniels, 134 N. C., 655; S. v. Hunter, 143 N. C., 610, and numerous citations to tbe last in tbe Anno. Ed., among others, S. v. English, 164 N. C., 506; S. v. Andrews, 166 N. C., 351. Here this evidence was corroborated by tbe confessions.

Tbe prisoners moved to strike out tbe following evidence, which bad been admitted without exception, by tbe officer Duncan: “I followed them to Georgia and caught them at Armour, Ga. In searching them I found a new $10 bill on Lowry and a new $10 bill on Poston, both of tbe King’s Mountain Bank, and a $1 bill and a poeketbook on Poston, and after searching the house where they bad been staying I found $60 more of new money.” Tbe court refused this motion, because, although evidence of tbe confessions bad been excluded because there were threats of lynching, it was competent to show tbe above facts. Tbe prisoners then moved to strike out tbe following evidence which bad been elicited by a question from tbe court and to which there bad been no objection at tbe time: “This was at tbe bouse where they bad bid it. Here is some that was on them. These (other) are two old $10 bills that I found at John Best’s.”

This evidence having been admitted .without objection, except as above stated, it was discretionary with the judge whether he would strike out the testimony on the new ground urged, after it had been admitted. S. v. Lane, 166 N. C., 333; S. v. Efler, 85 N. C., 585. The prisoners’ counsel in the oral argument here, though not in the brief, on the motion to strike out evidence, laid stress on the expression that the money had been found “at the house where they had hid it.” If this had been objected to at the time the court would doubtless have stricken it out and the witness could have modified the testimony by saying that in consequence of what the prisoners had said he had found the money under the mattress at the house where “it had been hidden.” Certainly it cannot be deemed that the difference was of such vital importance that the modification of the answer would have changed the verdict in this ease. Besides, the prisoner did not object to it on this ground in apt time.

Upon consideration of the whole ease, we do not find that the prisoners have been prejudiced by the rulings of the court in any respect.

No error.  