HusKiNS, J.
Defendant Parrish contends that the Talalah and Mansfield houses had been vacated and left open and the items of personal property located in them abandoned. He requested numerous special instructions with respect to abandoned property and assigns as error the court’s refusal to give them. We have reviewed the evidence and the requested instructions. There is no merit in defendant’s position. The Court of Appeals correctly held that there was no evidence which would justify or require instructions with respect to abandoned property.
Defendant filed a supplemental brief in this Court asserting, for the first time, that his constitutional rights were violated in that the trial court, in a joint trial where the confessor did not take the stand, admitted in evidence the extrajudicial confession of Jimmy Harris implicating this defendant in the crimes for which they were both on trial. He asserts this violated his constitutional right “to be confronted with the witnesses against him” as guaranteed by the Sixth Amendment to the Federal Constitution.
Defendant’s position was unsound at the time this case was tried below. At that time (January 1968) it was not error to admit the extrajudicial confession of one defendant, even though it implicated a codefendant against whom it was inadmissible, provided the trial judge instructed the jury to consider the confession only against the defendant who made it.
State v. Lynch,
266 N.C. 584, 146 S.E. 2d 677;
State v. Bennett,
237 N.C. 749, 76 S.E. 2d 42. The federal rule likewise sanctioned the admission of the confession of one defendant in a joint trial if the court instructed the jury to consider it only against the confessor.
Delli Paoli v. United States,
352 U.S. 232, 1 L. Ed. 2d 278, 77 S. Ct. 294 (1957).
Since the trial of this case, however, the United States Supreme Court in
Bruton v. United States,
391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (May 20, 1968), overruled
Delli Paoli
and held that in a joint trial the admission of the confession of one defendant, who did not take the stand, implicating the other violated the co-defendant’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. The decision in
Bruton
is retroactive,
Roberts v. Russell,
392 U.S. 293, 20 L. Ed. 2d 1100, 88 S.
Ct. 1921 (1968); and the right of confrontation is obligatory on the states by the Fourteenth Amendment to the Federal Constitution.
Pointer v. Texas,
380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965).
The rule now applicable in North Carolina is summarized by Sharp, J., with her usual clarity, in
State v. Fox,
274 N.C. 277, 163 S.E. 2d 492 (October 9, 1968), as follows: “The result is that in joint trials of defendants it is necessary to exclude extrajudicial confessions unless all portions which implicate defendants other than the declarant can be deleted without prejudice either to the State or the declarant. If such deletion is not possible, the State must choose between relinquishing the confession or trying the defendants separately. The foregoing pronouncement presupposes (1) that the confession is inadmissible as to the codefendant (see
State v. Bryant, supra
[250 N.C. 113, 108 S.E. 2d 128]), and (2) that the declarant will not take the stand. If the declarant can be cross-examined, a codefendant has been accorded his right to confrontation.” See
State v. Kerley,
246 N.C. 157, 97 S.E. 2d 876.
Fox
would control decision here had the question been raised in the court below and passed on in the Court of Appeals. This was not done. The Supreme Court reviews the decision of the Court of Appeals for errors of law allegedly committed by it and properly brought forward for review. G.S. 7A-31. It will not ordinarily pass upon a constitutional question unless it affirmatively appears that such question was timely raised and passed upon in the trial court if it could have been, or in the Court of Appeals, if, as here, the question arose after the trial.
State v. Colson,
274 N.C. 295, 163 S.E. 2d 376. Even so, we have discussed the question since
Fox
will control admissibility of the Harris confession at the next trial.
Although not brought forward for review in compliance with our rules, the Court considers it appropriate to take cognizance of the following excerpts from the charge, which was defendant’s Assignment of Error No. 9 in the Court of Appeals:
“. . . and that the defendants
or either of them
intentionally broke and entered the said dwelling house with the intent to commit the felony of larceny as I have heretofore defined that term to you, then it would be your duty to return a verdict of guilty as charged in the first count in this bill of indictment
against both or either
of these two defendants.
If you do not find from the evidence and beyond a reasonable doubt it will be your duty to return a verdict of Not Guilty
against either or both
of the defendants; or, upon the whole evi
dence in the case there remains in your mind a reasonable doubt as to
both or either one
of these defendants’ guilt, it would be your duty to give
either him or them
the benefit of that reasonable doubt and to
acquit him or them,
on the first count in the bill of indictment as to breaking and entering of the Talalah home.”
"So, you are instructed if you find from the evidence and beyond a reasonable doubt that on or about the 19th day of October, 1967, in this county, the defendant Lonnie Parrish and the defendant Jimmy Robert Harris or
either of these two defendants
without the consent of Frances Talalah took and carried away the personal property of Frances Talalah or any part thereof named in the bill of indictment, and that
either one or both
of these defendants took and carried it away with the felonious intent permanently to deprive Frances Talalah of the use thereof and to convert it to defendants’ or either of the defendants’ own use or the use of some other person not entitled thereto, it will be your duty to return a verdict of guilty as to
either or both
of these defendants on this charge of larceny. If you are not so satisfied from the evidence and all of the evidence beyond a reasonable doubt it will be your duty to return a verdict of Not Guilty
as to either or both of these defendants;
or, if upon a fair consideration of all the facts and circumstances in the case you have a reasonable doubt
as to both the defendants’ guilt or the guilt of either of them,
it will be your duty to return a verdict of Not Guilty
as to either or both of the two defendants.”
". . .
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HusKiNS, J.
Defendant Parrish contends that the Talalah and Mansfield houses had been vacated and left open and the items of personal property located in them abandoned. He requested numerous special instructions with respect to abandoned property and assigns as error the court’s refusal to give them. We have reviewed the evidence and the requested instructions. There is no merit in defendant’s position. The Court of Appeals correctly held that there was no evidence which would justify or require instructions with respect to abandoned property.
Defendant filed a supplemental brief in this Court asserting, for the first time, that his constitutional rights were violated in that the trial court, in a joint trial where the confessor did not take the stand, admitted in evidence the extrajudicial confession of Jimmy Harris implicating this defendant in the crimes for which they were both on trial. He asserts this violated his constitutional right “to be confronted with the witnesses against him” as guaranteed by the Sixth Amendment to the Federal Constitution.
Defendant’s position was unsound at the time this case was tried below. At that time (January 1968) it was not error to admit the extrajudicial confession of one defendant, even though it implicated a codefendant against whom it was inadmissible, provided the trial judge instructed the jury to consider the confession only against the defendant who made it.
State v. Lynch,
266 N.C. 584, 146 S.E. 2d 677;
State v. Bennett,
237 N.C. 749, 76 S.E. 2d 42. The federal rule likewise sanctioned the admission of the confession of one defendant in a joint trial if the court instructed the jury to consider it only against the confessor.
Delli Paoli v. United States,
352 U.S. 232, 1 L. Ed. 2d 278, 77 S. Ct. 294 (1957).
Since the trial of this case, however, the United States Supreme Court in
Bruton v. United States,
391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (May 20, 1968), overruled
Delli Paoli
and held that in a joint trial the admission of the confession of one defendant, who did not take the stand, implicating the other violated the co-defendant’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. The decision in
Bruton
is retroactive,
Roberts v. Russell,
392 U.S. 293, 20 L. Ed. 2d 1100, 88 S.
Ct. 1921 (1968); and the right of confrontation is obligatory on the states by the Fourteenth Amendment to the Federal Constitution.
Pointer v. Texas,
380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965).
The rule now applicable in North Carolina is summarized by Sharp, J., with her usual clarity, in
State v. Fox,
274 N.C. 277, 163 S.E. 2d 492 (October 9, 1968), as follows: “The result is that in joint trials of defendants it is necessary to exclude extrajudicial confessions unless all portions which implicate defendants other than the declarant can be deleted without prejudice either to the State or the declarant. If such deletion is not possible, the State must choose between relinquishing the confession or trying the defendants separately. The foregoing pronouncement presupposes (1) that the confession is inadmissible as to the codefendant (see
State v. Bryant, supra
[250 N.C. 113, 108 S.E. 2d 128]), and (2) that the declarant will not take the stand. If the declarant can be cross-examined, a codefendant has been accorded his right to confrontation.” See
State v. Kerley,
246 N.C. 157, 97 S.E. 2d 876.
Fox
would control decision here had the question been raised in the court below and passed on in the Court of Appeals. This was not done. The Supreme Court reviews the decision of the Court of Appeals for errors of law allegedly committed by it and properly brought forward for review. G.S. 7A-31. It will not ordinarily pass upon a constitutional question unless it affirmatively appears that such question was timely raised and passed upon in the trial court if it could have been, or in the Court of Appeals, if, as here, the question arose after the trial.
State v. Colson,
274 N.C. 295, 163 S.E. 2d 376. Even so, we have discussed the question since
Fox
will control admissibility of the Harris confession at the next trial.
Although not brought forward for review in compliance with our rules, the Court considers it appropriate to take cognizance of the following excerpts from the charge, which was defendant’s Assignment of Error No. 9 in the Court of Appeals:
“. . . and that the defendants
or either of them
intentionally broke and entered the said dwelling house with the intent to commit the felony of larceny as I have heretofore defined that term to you, then it would be your duty to return a verdict of guilty as charged in the first count in this bill of indictment
against both or either
of these two defendants.
If you do not find from the evidence and beyond a reasonable doubt it will be your duty to return a verdict of Not Guilty
against either or both
of the defendants; or, upon the whole evi
dence in the case there remains in your mind a reasonable doubt as to
both or either one
of these defendants’ guilt, it would be your duty to give
either him or them
the benefit of that reasonable doubt and to
acquit him or them,
on the first count in the bill of indictment as to breaking and entering of the Talalah home.”
"So, you are instructed if you find from the evidence and beyond a reasonable doubt that on or about the 19th day of October, 1967, in this county, the defendant Lonnie Parrish and the defendant Jimmy Robert Harris or
either of these two defendants
without the consent of Frances Talalah took and carried away the personal property of Frances Talalah or any part thereof named in the bill of indictment, and that
either one or both
of these defendants took and carried it away with the felonious intent permanently to deprive Frances Talalah of the use thereof and to convert it to defendants’ or either of the defendants’ own use or the use of some other person not entitled thereto, it will be your duty to return a verdict of guilty as to
either or both
of these defendants on this charge of larceny. If you are not so satisfied from the evidence and all of the evidence beyond a reasonable doubt it will be your duty to return a verdict of Not Guilty
as to either or both of these defendants;
or, if upon a fair consideration of all the facts and circumstances in the case you have a reasonable doubt
as to both the defendants’ guilt or the guilt of either of them,
it will be your duty to return a verdict of Not Guilty
as to either or both of the two defendants.”
". . . if the State has satisfied you from the evidence and beyond a reasonable doubt that on or about the 18th day of October, 1967, the Defendants Lonnie Parrish and Jimmy Robert Harris
or either of them
broke or entered the dwelling house of E. L. Mansfield and further satisfied you from the evidence and beyond a reasonable doubt that valuable securities or personal property of E. L. Mansfield or other persons was contained in said dwelling house, and that the defendants or
either one of them
intentionally broke and entered these premises with the intent to commit the felony of larceny as I have heretofore defined that term to you, then it will be your duty to return a verdict of guilty as charged in the second bill of indictment against
both or either one of these defendants
on the charge of breaking and entering the dwelling house of E. L. Mansfield. If you do not so find from the evidence and beyond a reason
able doubt, it would be your duty to return a verdict of Not Guilty; or, if upon the whole of the evidence in the case there remains in your minds
a reasonable doubt as to both or either one
of the defendant’s guilt, either one of them,
it will be your duty to give him or them the benefit of that reasonable doubt and acquit him or them
on the first count in this bill of indictment charging breaking or entering the premises of E. L. Mansfield.” (Italics ours.)
The trial judge no doubt intended the foregoing charge to mean that a verdict of guilty should be returned only against the defendant concerning whose guilt the jury had no reasonable doubt and that the jury should not convict both defendants unless it was satisfied of the guilt of each beyond a reasonable doubt. Even so, it has other connotations as well. For example, the jury could easily construe it to mean that if the State had satisfied the jury beyond a reasonable doubt that either defendant broke and entered the Talalah house with the felonious intent to commit larceny it would be the duty of the jury to return a verdict of guilty as charged against both defendants. Certainly this interpretation is reasonably implied. The same interpretation may be given to the charge on the other counts for which defendants were on trial. The charge is inaccurate, confusing and ambiguous.
It has been uniformly held that where the court charges correctly at one point and incorrectly at another, a new trial is necessary because the jury may have acted upon the incorrect part. This is particularly true when the incorrect portion of the charge is the application of the law to the facts.
State v. Gurley,
253 N.C. 55, 116 S.E. 2d 143;
State v. Johnson,
227 N.C. 587, 42 S.E. 2d 685. A new trial must also result when ambiguity in the charge affords an opportunity for the jury to act upon a permissible but incorrect interpretation.
Where two or more defendants were tried together for the same offense, charges susceptible to the construction that should the jury find beyond a reasonable doubt that either defendant committed the offense charged it should convict all the defendants, were held to constitute reversible error in
State v. Wolfe,
227 N.C. 461, 42 S.E. 2d 515;
State v. Massengill,
228 N.C. 612, 46 S.E. 2d 713;
State v. Meshaw,
246 N.C. 205, 98 S.E. 2d 13;
State v. Miller,
253 N.C. 334, 116 S.E. 2d 790; and
State v. Harvell,
256 N.C. 104, 123 S.E. 2d 103. The charge in this case is therefore erroneous and is disapproved.
Where the evidence against each of several defendants is not
identical, the trial court should submit the question of the guilt or innocence of each separately.
State v. Massengill, supra.
For the errors noted in the charge there must be a new trial. The decision of the Court of Appeals is reversed. The case is remanded to that court where it will be certified to the trial court for a new trial in accord with this opinion.
Reversed and remanded.