State v. Bonner, 222 N.C. 344 (N.C. 1942)

Winborne, J.

Upon the record on this appeal the appellants contend stressfully, and we think with propriety, that each of them was prejudiced by the denial of their motions for separate trials. "While at the time the motions were made and overruled, it doubtless did not appear that the State, in order to connect defendants with alleged murder of Ira L. Godwin, relied upon alleged confessions separately made by the defendants, which would be competent as evidence only against the defendant making the confession, and incompetent as evidence against any codefendant who was not present at the time the alleged confession was made, and who did not by word or conduct acquiesce therein. However, in view of the fact that in each of the alleged confessions incriminating statements were made against other defendants, we are unable to conclude that such incriminating statements were not prejudicial to such

others when it became apparent that the State relied solely upon such confessions for the conviction of the defendants. As stated in S. v. Cotton, 218 N. C., 577, 12 S. E. (2d), 246: “Without questioning the power of the court to consolidate cases for trial in proper instances, and in discretionary authority ordinarily to deal with an application for a severance ... it would seem that a mistrial and severance at the close of all the evidence would have been in order.”

As the ease goes back for new trial, and as the record on appeal does not disclose in full the evidence upon which the court ruled as to competency of the alleged confessions, we make no decision thereon. However, we call attention to the case of S. v. Anderson, 208 N. C., 771, 182 S. E., 643, and cases therein cited, as well as other decisions on the subject.

Also, as there is to be a new trial we deem it unnecessary to deal with exception to form of judgment.

New trial.