State v. Carter, 415

• Decision Date: 24 November 1965
• Docket Number: No. 415,415
• Parties: STATE, v. Howard CARTER, Jr.
• Court: North Carolina Supreme Court

Page 826

144 S.E.2d 826

265 N.C. 626

STATE, v. Howard CARTER, Jr.

No. 415.

Supreme Court of North Carolina.

Nov. 24, 1965.

Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harry W. McGalliard, and Staff Atty. George A. Goodwyn, Raleigh, for the State.

Linwood T. Peoples, Henderson, for defendant appellant.

PARKER, Justice.

Defendant assigns as error the denial of his motion for judgment of compulsory nonsuit made at the close of the State's evidence, and the denial of a similar motion made at the close of all the evidence.

Shirley Elizabeth Silver's first testimony was, 'I am nine years old.' Whereupon, counsel for defendant objected to her testifying further on the ground that she was incompetent as a witness due to her age. The judge had the jury to retire to their room, and in their absence heard testimony as to her competency. She testified on direct examination in substance as follows: She is nine years old. She puts her trust in God. She knows the difference between right and wrong, and she knows what it means to tell a story. It means that you will be telling a story to God, and if you tell a story to God, you will go to the bad place. She is in the third grade at school. She testified on cross-examination in substance: She lives with her mother. Defendant is her stepfather. She has been to church, but does not now go regularly. Her mother and her teacher told her it was bad to tell a story. She makes 100's in school; she makes A, B, and C on her report cards. This in substance is her testimony in reply to questions by the judge: She knows the difference between telling a story and telling the truth. When she was sworn on the Bible, she knew it meant to tell the truth when she testified in court. She knows a story is something that is not true. She intends to tell the truth in this case, and she is not going to tell a story. The judge found that she was competent to testify, to which the defendant objected and excepted.

The competency of this nine-year-old girl to testify as a witness in the case was a matter resting in the sound discretion of the trial judge, and considering her testimony above narrated, no abuse of judicial discretion appears. The judge's ruling was correct. State v. Satterfield, 207 N.C. 118, 176 S.E. 466 (a seven-year-old child); State v. Gibson, 221 N.C. 252, 20 S.E.2d 51 (a five-year-old child); State v. Merritt, 236 N.C. 363, 72 S.E.2d 754 (a five-year-old child); McCurdy v. Ashley, 259 N.C. 619, 131 S.E.2d 321 (a six-year and five- or six-month-old child).

After Shirley Elizabeth Silver was held to be a competent witness, the jury returned to the courtroom, and she testified in substance on direct examination: Defendant Carter is her stepfather. On 17 December her mother got up and went off to work in a cotton field, leaving her, defendant, and her little brothers and sisters, aged three, four, six, and seven years, in the home with her. She went into the kitchen to prepare breakfast for her little brothers and sisters, while they were dressing in their brdroom. Defendant came into the kitchen and pushed her down on the floor. She did not want him to push her down on the floor. He got on top of her on the floor, slapped her twice, told her not to holler, and told her to shut up. She then testified to the effect that defendant had sexual intercourse with her on the floor, and that she was hurt and bled. It would serve no useful purpose to set forth the sordid details of defendant's acts. After defendant finished with her, he left the house. After he left, Rosa Mann came to the house, fixed her up, and went for Pearl Macon. When they returned, Shirley fell on the floor. They picked her up, put her in a chair, and went for her mother. They carried her to a hospital in Henderson. In the hospital Dr. P. N. Avery put her on a table and put her to sleep. She doesn't know what the doctor did to her. She spent the night in the hospital. She testified on cross-examination: 'No, I did not resist Poochy [defendant] in any way. No, I did not slap him.'

Rosa Mann's testimony is to this effect: When she arrived at Shirley Elizabeth Silver's home, Shirley told her she was hurt and was bleeding. She put some pieces of cloth on her and told her that would last until her mother came. She left, and Shirley called her and said she needed changing again. Shirley was 'real bloody.' She asked Shirley if anybody had bothered her and Shirley said her stepfather had. She found Shirley's mother and brought her home.

Dr. P. N. Avery is a medical doctor in Henderson and was a witness for the State. It was stipulated by defendant and the State that he is a medical expert. He testified in substance: He examined Shirley on 17 December 1964 in the hospital in Henderson. He found quite a lot of blood, a large blood clot in her vagina, and wounds in her vagina. At first he could not make a full examination because of her pain and trauma. He took her to the operating room and put her to sleep. He then found she had a laceration of the vagina one and one-half inches long, and another laceration of the vagina one-half an inch long. While she was asleep, he sewed up her lacerations, taking eleven stitches. She lost a lot of blood. His examination disclosed her vagina had been penetrated. Shirley told him that on this morning defendant threw her on the floor, got on her, and had intercourse with her.

K. K. Robinson, a deputy sheriff of Vance County and a witness for the State, testified that he talked to Shirley at the hospital. His testimony is to the effect that Shirley told him defendant had had intercourse with her.

Defendant's evidence is to this effect: Soon after his wife left their home, he left in a car driven by Louise Richardson, who carried him to town to get his driver's license. He did not return home until 5 or 6 p. m. that day. He did not molest or bother Shirley in any way. He did not slap her. When he arrived home, he asked where Shirley was. The children said she was in the hospital. When his wife came home, he asked her what was wrong with Shirley, and she said somebody had been messing with her. He said it was not he. That night the officers came to his house with a warrant and arrested him.

The indictment charges that defendant did feloniously ravish and carnally know Shirley Elizabeth Silver, a female, by force and against her will. First clause of G.S. § 14-21. The indictment does not charge defendant with carnally knowing and abusing Shirley Elizabeth Silver, a female child, under the age of twelve years, second clause of G.S. § 14-21, in which case neither force nor lack of consent need be alleged or proven, the reason being that by virtue of the second clause of G.S. § 14-21 such child under the age of twelve years is presumed incapable of consenting. State v. Johnson, 226 N.C. 266, 37 S.E.2d 678; State v. Strickland, 254 N.C. 658, 119 S.E.2d 781.

Defendant contends that the State is required to show according to its indictment here that defendant ravished and carnally knew Shirley Elizabeth Silver by force and against her will, that proof of force and lack of consent are necessary elements of the rape charged in the indictment, and that considering the State's evidence, in the light most favorable to it, the State has no evidence sufficient to carry the case to the jury on the question of lack of consent on the part of Shirley Elizabeth Silver. That Shirley testified: 'No, I did not resist Poochy [defendant] in any way. No, I did not slap him.' Defendant cites in his brief in support of his contention: State v. Johnson, supra; State v. Strickland, supra; State v. Barefoot, 241 N.C. 650, 86 S.E.2d 424; 44 Am.Jur., Rape, § 104, p. 968. These three cases and the section in Am.Jur. cited by defendant are not precisely in point, in that they do not discuss the question of lack of consent by a young child, when the indictment does not allege her age, but alleges merely that she was a female, and was feloniously raped by force and against her will, under the first clause of G.S. § 14-21.

The State has plenary evidence that defendant had carnal knowledge of Shirley Elizabeth Silver. If such knowledge were obtained 'by force and against her will,' as charged in the indictment here, it was rape, otherwise not, under the indictment here. State v. Thompson, 227 N.C. 19, 40 S.E.2d 620. The State has ample evidence that defendant had carnal knowledge of Shirley Elizabeth Silver by force. In this connection, 'the phrases 'against the will of the female' and 'without her consent' mean the same thing. Any attempted distinction would be meaningless and could only confuse a jury if it were attempted.' Wilson v. State, 49 Del. 37, 109 A.2d 381, cert. den. 348 U.S. 983, 75 S.Ct. 574, 99 L.Ed. 765.

This is said in 44 Am.Jur., Rape, § 13 p. 910:

'Consent of the woman from fear of personal violence is void. Even though a man lays no hands on a woman, yet if by an array of physical force he so overpowers her mind that she dares not resist, or she ceases resistance through fear of great harm, the consummation of unlawful intercourse by the man is rape. The age of the prosecutrix is always important to be considered in such cases.'

To the same effect, 75 C.J.S. Rape § 12c, p. 475 et seq.

'A consent obtained by the use of force or fear due to threats of force is void, and the offense then rape.' 1 Wharton's Criminal Law and Procedure (Anderson ed. 1957), § 311, p. 649.

State v. Thompson, supra, was a criminal prosecution on an indictment charging the defendants with rape. The evidence for the State tends to show that on the night of 17 March 1946 the defendants severally had sexual intercourse with the prosecuting witness, who testified: 'I did not object to the intercourse these defendants had with me because I was so frightened, I was afraid they would kill me; it was against my wishes and against my will. * * * I did not consent; I used as much force as I could to keep them from having...