McClure v. State, 5

• Decision Date: 04 May 1966
• Docket Number: No. 5,5
• Citation: 267 N.C. 212,148 S.E.2d 15
• Court: North Carolina Supreme Court
• Parties: Frank Hunter McCLURE, Petitioner, v. STATE of North Carolina.

Page 15

148 S.E.2d 15

267 N.C. 212

Frank Hunter McCLURE, Petitioner, v. STATE of North Carolina.

No. 5.

Supreme Court of North Carolina.

May 4, 1966.

William H. Stepp, Jr., Hendersonville, for petitioner.

PARKER, Chief Justice.

On 31 December 1964 petitioner filed with the Superior Court of Henderson County a petition pursuant to the provisions of G.S. § 15--217 et seq., seeking a review of the constitutionality of his trial at the October 1960 Criminal Session of Henderson County, Froneberger, J., presiding. On 27 February 1965 Clarkson, J., pursuant to G.S. § 15--219, appointed Kenneth Youngblood, a member of the Henderson County Bar, to represent petitioner, an indigent, at the post conviction hearing. The material facts alleged in the petition, admitted in the answer thereto of the Attorney General, shown by the evidence, and found by Judge Campbell in his order are not in dispute, and are as follows:

At the October 1960 Criminal Session of Henderson, petitioner was called for trial on an indictment charging him in June 1960 with unlawfully, wilfully and feloniously carnally knowing Evelyn B. Hyder, a female child, over twelve and under sixteen years of age, who had never before had sexual intercourse with any person, he, the said Hunter McClure, a male person, being at the time over eighteen years of age, a violation of G.S. § 14--26. McClure was represented by Paul K. Barnwell, a lawyer employed for him by his father and mother. Petitioner entered a plea of guilty to an assault with intent to commit rape, a violation of G.S. § 14--22, and was sentenced to imprisonment for a term of not less than twelve nor more than fifteen years. There was, so far as the record before us discloses, no formal and sufficient accusation in the Superior Court of Henderson County at the October 1960 Criminal Session charging petitioner with the offense of an assault with intent to commit rape. Petitioner is still in prison serving this sentence.

In the hearing before Judge Campbell, petitioner testified, Inter alia, in substance: In June 1960 he was 35 years old. Evelyn B. Hyder was his sister's child, was 'right at 14' years, and was willing for him to have sexual intercourse with her. His lawyer Barnwell told him 'we'll enter a plea of guilty to assault.' He thought he was pleading guilty to an assault; no one told him he was pleading guilty to an assault on a female with intent to commit rape.

Judge Campbell in his order found the following facts:

'8. That at the time of the trial, the defendant was not under the influence of any narcotics, drugs, alcohol and had not been threatened, placed under duress or promised anything by any court official, law enforcement officer, solicitor or Judge, and that the defendant freely and voluntarily and at a time when he knew or should have known what he was doing in open Court as disclosed by the Minutes of said Court. 'The defendant, through his Attorney, Paul Barnwell enters a plea of guilty of assault with intent to commit rape.' That said plea was entered freely and voluntarily and that the Court in open Court entered Judgment: 'Let the defendant be confined in the State's Prison at Raleigh for not less than 12 nor more than 15 years.'

'11. That the defendant with his long and varied experience in the trial of criminal cases and as the accused in criminal cases and as a felon knew what he was doing when he entered the plea of guilty and he did so at a time when he had full opportunity to confer with his mother and other members of his family and with his privately employed attorney.'

Based upon such findings Judge Campbell ordered and adjudged 'that none of the defendant's constitutional rights were in any way violated and that he received a fair trial in accordance with due process of law and the sentence rendered conforms with the law and was rendered by a Court of competent jurisdiction and that the defendant is now properly in the custody of the prison authorities of the State of North Carolina.'

After Judge Campbell had entered his final order, he entered an order discharging Kenneth Youngblood as attorney for petitioner, for the reason that Kenneth Youngblood asked to be released as petitioner's attorney because of petitioner's attitude.

On 20 October 1965 Judge Campbell entered an order appointing William H. Stepp, Jr., as counsel for petitioner to apply for a writ of Certiorari to this Court to review Judge Campbell's final order.

On 15 February 1966 we allowed McClure's petition for a writ of Certiorari.

The felony set forth in G.S. § 14--26 (carnal knowledge of female virgins between twelve and sixteen years of age) is a distinct and separate felony from the felony set forth in G.S. § 14--22 (assault with intent to commit rape). The essential elements of G.S. § 14--22 and G.S. § 14--26 are not identical. In G.S. § 14--26 former virginity of the female child is an essential element of the charge, and her consent is not a defense. State v. Barefoot, 241 N.C. 650, 86 S.E.2d 424. Punishment for a violation of G.S. § 14--26 shall be a fine or imprisonment in the discretion of the court, and imprisonment cannot exceed ten years. State v. Grice, 265 N.C. 587, 144 S.E.2d 659; State v. Blackmon, 260 N.C. 352, 132 S.E.2d 880 (1963). The Blackmon case overruled State v. Swindell, 189 N.C. 151, 126 S.E. 417 (1925), which upheld a sentence of imprisonment for thirty years based upon defendant's conviction for violating C.S. 4209, now G.S. § 14--26. Punishment for a violation of G.S. § 14--22 shall be imprisonment in the State's prison for not...