State v. Whittemore

• Decision Date: 08 November 1961
• Docket Number: No. 76,76
• Citation: 255 N.C. 583,122 S.E.2d 396
• Parties: STATE, v. Ray WHITTEMORE. STATE v. Elmer WHITTEMORE.
• Court: North Carolina Supreme Court

Page 396

122 S.E.2d 396

255 N.C. 583

STATE, v. Ray WHITTEMORE.

STATE v. Elmer WHITTEMORE.

No. 76

Supreme Court of North Carolina.

Nov. 8, 1961

Don C. Young and Lamar Gudger, Asheville, for defendants-appellants.

T. W. Bruton, Atty. Gen., and Harry W. McGalliard, Asst. Atty. Gen., for the State.

RODMAN, Justice.

Each defendant's motion for nonsuit was overruled. Hence the first question for determination is: Was there any evidence to establish each essential ingredient of each crime?

Ervin, J., in his usual clear-cut and concise manner, stated what it was necessary to prove in order to convict a defendant for violating G.S. § 14-26. He said: 'Three essential ingredients must coexist to render a male person guilty of the statutory felony of obtaining carnal knowledge of a virtuous girl between the specified ages. They are: (1) The male person must have carnal knowledge of the girl; (2) the girl must be over twelve and under sixteen years of age; and (3) the girl must never before have had sexual intercourse with any person. State v. Swindell, 189 N.C. 151, 126 S.E. 417. The terms 'carnal knowledge' and 'sexual intercourse' are synonymous. There is 'carnal knowledge' or 'sexual intercourse' in a legal sense if there is the slightest penetration of the sexual organ of the female by the sexual organ of the male. It is not necessary that the vagina be entered or that the hymen be ruptured; the entering of the vulva or labia is sufficient. (Citing authorities.)' State v. Bowman, 232 N.C. 374, 61 S.E.2d 107, 108.

Conduct declared criminal by G.S. § 14-177 is sexual intercourse contrary to the order of nature. Proof of penetration of or by the sexual organ is essential to conviction. This interpretation was put on the statute in State v. Fenner, 166 N.C. 247, 80 S.E. 970, decided in 1914. The Legislature has not disapproved of the interpretation then given by amending the statute. That interpretation accords with the interpretation generally given to similar statutes. The Supreme Court of Maine said: '(I)t does not follow that every act of sexual perversion is encompassed within the definition of 'the crime against nature'. * * * The crime against nature involving mankind is not complete without some penetration, however slight, of a natural orifice of the body. The penetration need not be to any particular distance.' State v. Pratt, 151 Me. 236, 116 A.2d 924, 925; State v. Hill, 179 Miss. 732, 176 So. 719 (Miss.); People v. Angier, 44 Cal.App.2d 417, 112 P.2d 659 (Cal.); Hopper v. State, Okl.Cr., 302 P.2d 162 (Okl.); State v. Withrow, 142 W.Va. 522, 96 S.E.2d 913 (W. Va.); Wharton v. State, 58 Ga.App. 439, 198 S.E. 823 (Ga.); 81 C.J.S. Sodomy § 1, p. 371; 48 Am.Jur. 550.

An article entitled 'The Law of Crime against Nature' was published in 32 N.C. Law Rev. 312 in 1954. The author traces the history of the statute, takes note of the few times this Court had been called upon to interpret the statute and the need of additional legislation to specifically define criminal sexual conduct. The Legislature, at the session following the publication of this article, enacted c. 764, S.L.1955, now G.S. § 14-202.1. That Act supplements G.S. § 14-177. State v. Lance, 244 N.C. 455, 94 S.E.2d 335. The law as declared in State v. Fenner, supra, remains in force.

To support the conviction of defendant Elmer Whittemore the State relies on testimony of Patricia. She testified that he invited her into an uninhabited house. 'He then told me to pull off my pants * * * I pulled my pants below by knees. After I pulled my panties down below my knees, he put his privates against mine. He was laying on his back and made me lay down on him. I stayed inside the house about two or three minutes before he told me to pull my panties down. After he went in the house, he pulled his trousers off of one leg and laid down flat on his back on the floor. He made me put my hands on his privates and he put his hand on my privates. He kept it there about two or three minutes; he just left it there. After he had done that for two or three minutes, he put his mouth on my breast and after that he put it on my privates and kept his mouth there about one or two minutes. He just left it there * * * He had his privates at my privates rubbing it up and down. I said at. He did that about one or two minutes * * *.'

No matter how disgusting and degrading defendant's conduct as depicted by the witness may have been, his conviction should not be sustained unless the evidence suffices to prove the existence of each essential ingredient of the crimes for which he was being tried. The evidence is insufficient to establish the 'penetration' necessary for a conviction under each of the statutes. We conclude the motion of defendant Elmer Whittemore for judgment of nonsuit as to each of the charges for which he was on trial should have been allowed.

Ray Whittemore has suffered from cerebral palsy since birth. He finds it difficult, if not impossible, to get around without assistance. Such relations as he had with Barbara took place in the truck in which he, his father, and the two girls had been riding. Without setting out her testimony in detail with respect to what she did and what defendant Ray Whittemore did, suffice it to say that her testimony substantially duplicates the testimony of Patricia with respect to her relations with the defendant Elmer. Barbara's testimony standing alone, therefore would not suffice to convict the defendant Ray Whittemore of either of the crimes because of the failure to establish penetration.

But the State was not content to rely solely on the testimony of the girls to convict Ray Whittemore. As to him it sought to fortify their testimony by a purported confession.

When the confession was offered, defendant objected and asked to be heard on the question of admissibility in the absence of the jury. The jury was excused. The record discloses this colloquy between counsel and the court:

'Mr. Young: Well, sir, if your Honor please, I want to put on some evidence as to the admissibility of anything that he said to him about it.

'Court: Go ahead and ask him.

'Mr. Young: I want to put on some other witnesses.

'Court: As to whether or not it was a voluntary statement?

'Mr. Young: As to whether or not he is capable of making it, knowing what he was doing.

'Court: He operates a grocery store.

'Court: What you have brought out so far, the boy is incapable of walking, you haven't brought out anything that he is incapable of talking.

'Mr. Young: Yes, sir, but this witness doesn't know about that. I think I can show by the doctor, Dr. Waller, here, as to his condition.

'Court: You mean that he is mentally incompetent?

'Mr. Young: Yes, sir.

'Court: Has he ever been committed?

'Mr. Young: No, sir, not that I know of.

'Court: Ever been adjudicated incompetent?

'Mr. Young: Not that I know of.

'Court: Well, I am going to let it in. This is the first time I have heard the plea of insanity in the case.

'Mr. Young: No, sir, I am not pleading insanity. I am pleading inadmissibility of the statement, anything about it.

'Court: I will overrule the objection. Bring the jury back in.'

Thereupon, over defendant's objection, the witness was permitted to testify that on Saturday morning, 8 April, while in jail, Ray Whittemore told him that on Sunday, 19 March, he went to the Moss home where Patricia and Barbara lived; he asked the girls if they wished to ride up the mountain and turn around. Ray then told the witness: 'We drove up the mountain and came to an old house. I asked Patsy and Barbara if me and my dad could do it to them, and they said yes * * * After Daddy left with Patsy, Barbara pulled her pants off and I started to play with her privates * * * After we played with each other for a while, I was lying on my back and told her to get up on top, and she did. I took my privates and rubbed it through the lips of her privates.'

An extrajudicial confession is competent only when made understandingly and voluntarily. State v. Davis, 253 N.C. 86, 116 S.E.2d 365; State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R.2d 1104. A subnormal mental condition, standing alone, does not render incompetent a confession that is voluntary and understandingly made. If accused has sufficient mental capacity to testify, he has sufficient mental capacity to confess. Artesani v. Gritton, 252 N.C. 463, 113 S.E.2d 895; State v. Isom, 243 N.C. 164, 90 S.E. 2d 237, 69 A.L.R.2d 358; 23 C.J.S. Criminal Law § 935, pp. 226-227; 20 Am.Jur. 449. But mental capacity, or rather the lack of such capacity, is an important factor to be considered with other factors in determining whether in fact the purported confession was voluntary. Blackburn v. State of Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242; Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed. 2d 246. What confessions are admissible is the subject of an extensive annotation following the Fikes case, 1 L.Ed.2d 1735.

Defendant in his brief filed here contends the evidence subsequently offered in his defense clearly establishes the confession was not in fact voluntary and should have been excluded.

The officer to whom the statement was given testified after the confession was admitted: 'I do not know whether Ray Whittemore went to school or not. I do know that Ray Whittemore is severely handicapped. I remember that Ray Whittemore asked for aspirin while I was talking with him and I sent and had two aspirins brought to him. Ray Whittemore told me that he was nervous and that he did not sleep well. That was the morning after he spent the night in jail. I do know that he can't get around by himself at all, and when he was put in jail, his crutches were taken away from him. I did not bring Ray Whittemore out of the jail to talk to him, and I wrote up his statement up there in the jail at that time.'

Doctors Waller and Atkins, both of whom had attended the defendant Ray, testified to...