State v. Benton
| Decision Date | 27 November 1946 |
| Docket Number | 578 |
| Citation | 40 S.E.2d 617,226 N.C. 745 |
| Parties | STATE v. BENTON. |
| Court | North Carolina Supreme Court |
Criminal prosecution on indictment charging that the defendant did 'with force and arms' assault ravish and carnally know a female 'wilfully, unlawfully and feloniously * * * and against her will'.
There was evidence by the State, including an alleged confession of the defendant, in support of the indictment. The prosecutrix was assaulted by some one with a 'crippled hand--his fingers seemed to have been drawn on one hand pocketbook where the assault took place. A doctor was also called who found the prosecutrix in a highly nervous condition, with signs of having been choked and assaulted.
Some time thereafter the defendant was questioned by the officers and made a statement in the nature of a confession to the effect that he raped the prosecutrix on the night in question. The defendant has a crippled hand.
On trial, the defendant interposed a plea of mental irresponsibility induced by drunkenness and low mentality. He also offered evidence tending to show that he was elsewhere at the time of the assault--an alibi. The defendant did not offer himself as a witness before the jury.
The defendant excepted to the general tone of the court's charge to the jury--its strong summation of the State's case--the singling out of some of the testimony for special consideration, and particularly to the following expressions:
1. 'Something has been said in the argument about the competency of the confession * * * The court has ruled that the confession was made freely and voluntarily * * *, so any argument * * * as to the incompetency of the confession * * * will not be considered by you at all. The court has ruled that the confession as made to the officers by the defendant was freely and voluntarily made and admitted in evidence for your consideration in this case. You will take the law from the court and the court alone '. Exception.
2. 'Now the State further insists and contends that the prosecutrix is corroborated in her testimony * * * that she immediately ran to her daughter's home, * * * and told them immediately what had happened * * * that she didn't wait five minutes, ten minutes, an hour or two hours, or a week '. Exception.
3. 'The State further insists and contends that a doctor was called and that you should believe what the doctor says about it, that he was an expert witness * * * which the State insists and contends corroborates her testimony'.
4. The State further insists and contends that the psychiatrist offered by the defendant substantiates rather than contradicts the State 'in its contention of his (defendant's) mental capacity to be responsible for his crime * * * and if you take what the defendant's evidence shows you would say that the defendant is responsible under the law for his crime'.
5. 'The State further insists and contends that you should believe the officers in the case (naming them); that they have no reason to testify falsely against this man; that they are officers of the law * * * worthy of your belief and you should believe them; that if you believe what they say about it and what the defendant told them and the other evidence in the case * * * you should be satisfied * * * beyond a reasonable doubt that the defendant is guilty of the capital crime of rape'.
6. 'Now the defendant's counsel in their argument * * * have asked you to return a verdict of 'guilty of assault with intent to commit rape' but not to find the defendant guilty of the capital charge of rape'.
The jury was given the case about 4 o'clock on Friday afternoon. On the following morning about 11 o'clock they were called in by the court and asked if they were able to agree upon a verdict. The jury answered: 'No, we are pretty well divided; 7 to 5.' The court then instructed the jury that it was their duty to agree if possible, saying 'The evidence as testified to by the witnesses has been rather clear and if it is at all possible you gentlemen should try to reach a verdict. Exception.
In about 30 minutes, the jury returned the verdict, 'Guilty of rape as charged in the bill of indictment'.
Judgment Death by asphyxiation.
The defendant appeals, assigning errors.
Harry M. McMullan, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes and Ralph M. Moody, Asst. Attys. Gen., for the State.
Jones & Jones, of Rockingham, and R. O. Everett, of Durham, for defendant.
The sufficiency of the indictment is challenged by motion in arrest of judgment, because it fails to allege the use of 'force' in the accomplishment of the assault. State v. Johnson, 226 N.C. 266, 37 S.E.2d 678; State v. Primus, 226 N.C. 671, 40 S.E.2d 113. It has been decided that the words 'by force', or some equivalent expression, must be used in an indictment for rape. G.S. s 14-21; State v. Johnson, 67 N.C. 55. Whether the instant bill is sufficient need not now be determined, since a new trial must be ordered on other grounds, and the solicitor can easily eliminate any objection by sending a new bill to the grand jury. It is desirable in criminal matters to adhere to the established practice. Innovations usually result in prolonged litigation. State v. Owenby, 226 N.C. 521, 39 S.E.2d 378.
A careful perusal of the charge invites the thought that it must have impressed the jury with the strength of the State's case and the weakness of the defendant's especially in view of the closing admonition, 'the evidence as testified to by the witnesses has been rather clear', and the result which followed immediately thereafter. State v. Rhinehart, 209 N.C. 150, 183 S.E. 388; State v. Hart, 186 N.C. 582, 120 S.E. 345; State v. Horne, 171 N.C. 787, 88 S.E. 433. The jury could hardly have understood the court to mean that the testimony of the defendant's witnesses was 'rather clear', for dual, if not discordant, pleas--insanity and alibi--were being interposed by him, and Dr. Owens, who testified in his behalf, had said on cross-examination: 'I wouldn't go so far as to say he doesn't know right from wrong '. The defendant did not testify before the jury. This pronouncement of the court that the evidence was 'rather...
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