State v. Brown

• Decision Date: 30 April 1947
• Docket Number: 436.
• Citation: 42 S.E.2d 402,227 N.C. 383
• Parties: STATE v. BROWN.
• Court: North Carolina Supreme Court

42 S.E.2d 402

227 N.C. 383

STATE v. BROWN.

No. 436.

Supreme Court of North Carolina

April 30, 1947

Criminal prosecution tried upon an indictment charging the defendant with rape.

The evidence tends to show that the prosecutrix, an unmarried woman, 50 years of age, lived alone in a nine-room house at Leesville. Her home was about a half a mile from her nearest neighbor. On the evening of 11 July, 1946, about 8:15 o'clock, the prosecutrix was alone at her home, and the defendant, a negro man, broke into the house and tried to have sexual intercourse with her forcibly and against her will. She resisted him vigorously. Fearing that someone might hear her cries, he tried to take her out of the house through a window; failing in that he carried her out of the house through the back door. He then carried her a distance of approximately 100 yards into a pine thicket and kept her there about an hour and a half and raped her two or three times.

An examination of the prosecutrix on 12 July, 1946, by a physician, disclosed that she had bruises on her face, neck chin and legs. She had a black eye. The examination further revealed that she had previously been a virgin but had within the past 24 or 28 hours suffered a forcible penetration with a laceration of the mouth of the vagina.

The defendant was arrested on 13 July, 1946, and confessed to the crime charged. He thereafter accompanied the officers to the house where the prosecutrix had lived, and pointed out the window where he broke into the house, and the door he broke open to get into the room occupied by the prosecutrix. He showed the officers the different rooms where he struggled with the prosecutrix, took them to the place in the woods where he said he "raped her two or three times," and further stated that she was so weak when he finished he "carried her back to the house and dropped her at the well." The defendant's oral confession, as related by three witnesses for the State, and the testimony of the prosecutrix, coincide in almost every detail as to what took place on the occasion in question. We deem it unnecessary to record the further testimony of the various witnesses.

Verdict Guilty of rape, as charged in the bill of indictment. Judgment: Death by asphyxiation.

The defendant appeals, assigning error.

Harry M. McMullan, Atty. Gen., and T.W. Bruton, Hughes J. Rhodes and Ralph M. Moody, Asst. Attys. Gen., for the State.

Harvey Jones and E.D. Flowers, both of Raleigh, for defendant.

DENNY, Justice.

According to the uncontradicted evidence offered by the State, the defendant committed the crime of rape, as charged in the bill of indictment. The attack on the prosecutrix by the defendant was one of pitiless cruelty and brutality.

In the trial below, the defendant did not repudiate his confession or object to its admission in evidence, neither did he offer any evidence in contradiction thereof. He elected not to go upon the stand, but to rest his defense upon a plea of insanity. The defendant offered expert testimony tending to show that he was a person of low mentality. According to this testimony the defendant has the ability to differentiate between right and wrong, but does not have the ability to understand the gravity or the consequences of his acts. The State, on the other hand, offered evidence tending to show that he was a man of normal mentality.

There being no conflict in the evidence bearing on the commission of the crime, the presiding Judge announced that he would charge the jury that it might render one of two verdicts guilty of the crime of rape as charged in the bill of indictment, or not guilty. Whereupon the defendant tendered a prayer for instruction, praying that the jury be instructed that it might render one of four verdicts: Guilty of rape as charged in the bill of indictment guilty of assault with intent to commit rape; guilty of an assault on a female, or not guilty. The prayer was refused. The defendant excepted and this exception constitutes the principal assignment of error on his appeal. Therefore, we are confronted with this question: Was the defendant entitled to the instruction requested upon the evidence adduced in the trial below? The question must be answered in the negative.

The defendant is relying upon State v. McLean, 224 N.C. 704, 32 S.E.2d 227; State v. DeGraffenreid, 223 N.C. 461, 27 S.E.2d 130; State v. Feyd, 213 N.C. 617, 197 S.E. 171; State v. Ratliff, 199 N.C. 9, 153 S.E. 605, and State v. Allen, 186 N.C. 302, 119 S.E. 504. It will be noted, however, in each of the above cited cases, except State v. DeGraffenreid, the appeal was from a conviction of burglary in the first degree. In such cases, the statute G.S. § 15-171, provides that when the crime charged in the bill of indictment is burglary in the first degree, it is mandatory upon the Judge to instruct the jury that even though the jury may find the facts "sufficient to constitute burglary in the first degree as defined by statute," the jury "may elect to render a verdict of guilty of burglary in the second degree if they deem it proper so to do." This statute relates to indictments for burglary in the first degree only, and has no bearing on the appeal before us.

The only statutes upon which the defendant may seek relief under his exception, are G.S. §§ 15-169 and 15-170. The pertinent part of G.S.§ 15-169 reads as follows: "On the trial of any person for rape, or...