State v. Mathis , 13 N.C. App. 359 ( 1971 )

BROCK, Judge.

Defendant’s husband, Cecil Mathis, was tried jointly with her and was also convicted of felonious larceny. His appeal was heard by another panel of this Court.

When the State proposes to rely upon confessions, a trial of two or more defendants jointly is fraught with the difficulty of excluding from the confession of the declarant any reference to a co-defendant. See State v. Fox, 274 N.C. 277, 163 S.E. 2d 492. When the co-defendants in a joint trial are husband and wife, the State runs the danger of violating G.S. 8-57, and this danger is compounded by the rule laid down in State v. Fox, swyra, when the State proposes' to rely upon confessions of husband and wife in a joint trial. It is likely that the time saved in a joint trial of husband and wife, with or without the use of confessions, is not worth the risk of prejudicial error.

In this case, defendant Jacqueline M. Mathis has no grounds to complain that her extrajudicial, inculpatory statement was used in evidence against her. Upon plenary, competent evidence on voir dire, the trial judge found that her statements were freely, understandingly, and voluntarily made. Nevertheless, she assigns as error the allowance by the trial court of her husband’s extrajudicial, inculpatory statement in evidence in their joint trial. She contends she suffered prejudicial error because of the violation of both the rule of State v. Fox, supra, and the rule of G.S. 8-57.

We quote verbatim Officer Smith’s recitation of the statement made to him by defendant’s husband.

“Q State what he told you about his activity on this occasion, Mr. Smith.

“A He stated that he was at the Oldsmobile Place here in Concord looking at some cars with a person he did not know from Charlotte; that when they started to leave the Oldsmobile place the stranger drove the car, and drove to a place behind the warehouse where the stranger got out of the car, and said he’d be back in a few minutes; he did return after a short while and asked him to come with him to the warehouse, he had some stuff he wanted to get; he stated that while they were at the warehouse with the stranger an officer came by and they ran. He said they were at the warehouse getting some stuff. He said he did not enter the building. He had accompanied the stranger there who said he had some stuff he wanted to get. The stuff was at the rear door of the building. After having talked to Cecil and Jacqueline Mathis, I subsequently had another conversation with both of them.”

A close reading of the testimony discloses that, if any part of the husband’s extrajudicial statement implicated the co-defendant wife, it was carefully deleted by the State. Thus, there was no violation of the rule of State v. Fox, supra, or of the rule of G.S. 8-57. The admission of the co-defendant husband’s extrajudicial statement was not prejudicial to the co-defendant wife.

We have examined defendant’s remaining assignment of error and, in our opinion, no error has been shown which requires or would justify a new trial.

No error.

Judges Britt and Vaughn concur.