State v. Chapman

• Decision Date: 25 March 1942
• Docket Number: 289.
• Parties: STATE v. CHAPMAN.
• Court: North Carolina Supreme Court

19 S.E.2d 250

221 N.C. 157

STATE v. CHAPMAN.

No. 289.

Supreme Court of North Carolina

March 25, 1942

Criminal prosecution tried upon two bills of indictment charging the defendant with rape.

At the call of the cases for trial, the Solicitor announced that the State would not ask for a verdict of rape, but would ask for a verdict of assault with intent to commit rape in each case. Thereupon the Court, in its discretion, consolidated the two cases for trial.

The State offered evidence tending to show that on the night of September 20, 1941, the defendant, a 38 year old colored man in company with one Fannie Simmons, a colored girl, went to the edge of the City of New Bern under the pretense on the part of the defendant, that they were going to see a girl friend. After they had left the taxi in which they had been riding, the defendant took the Simmons girl on a road through the woods, still pretending to be in search of the friend's house. Fannie Simmons lived in Pamlico County and had arrived in New Bern that day. The prosecutrix testified that after she and defendant had gone along this road into the woods for some distance, the defendant made an improper proposal to her, and upon her refusal he struck her first near her left eye, and again on the nose, and thereafter forced her to have sexual intercourse with him against her will.

On the same night, and while defendant was still with the colored girl, he met Louise Pate, a white girl, in the company of two white boys, and after having an altercation with the two white boys, Louise Pate, 16 years of age, testified that the boys and the colored girl left her with the defendant and that he forced her to have sexual intercourse with him against her will.

Verdict "Guilty of an assault with intent to commit rape in each case."

Judgment In case No. 466, that the defendant be confined in State Prison at Raleigh for a period of seven years, and in case No. 468 that the defendant be confined in the State Prison at Raleigh for a period of eight years. Sentence in No. 468 to begin at the expiration of the sentence in No. 466.

The defendant appeals, assigning errors.

Harry McMullan, Atty. Gen., and T. W. Bruton and G. B. Patton, Asst. Attys. Gen., for the State.

Charles L. Abernethy, Jr., of New Bern, for defendant.

DENNY Justice.

The first exception is to the Court finding as a fact that the two cases against defendant made one connected story and therefore consolidated the cases for the purpose of trial. The defendant contends that the consolidation was prejudicial.

The case of State v. Rice, 202 N.C. 411, 163 S.E. 112, 113, holds: "C.S.§ 4622, regulates the consolidation of criminal actions. This statute has been construed in many decisions of this court. In State v. Combs, 200 N.C. 671, 158 S.E. 252, 254, it is written: 'The court is expressly authorized by statute in this state to order the consolidation for trial of two or more indictments in which the defendant or defendants are charged with crimes of the same class, which are so connected in time or place as that evidence at the trial of one of the indictments will be competent and admissible at the trial of the others.' State v. Lewis, 185 N.C. 640, 116 S.E. 259; State v. Smith, 201 N.C. 494, 160 S.E. 577; State v. Malpass, 189 N.C. 349, 127 S.E. 248. Moreover, it has been generally held that, if separate offenses are charged in the same warrant or indictment, they are to be considered as separate counts. State v. Jarrett, 189 N.C. 516, 127 S.E. 590."

This exception to the consolidation herein complained of cannot be sustained.

The second exception is to the refusal of the Court to dismiss the bill or count alleging assault with intent to commit rape upon the body of Louise Pate, in that the testimony, as defendant contends, shows clearly that she voluntarily consented to have sexual intercourse with the defendant. The motion to dismiss was made at the close of the State's evidence. To the refusal of the Court to dismiss, the defendant excepted.

The defendant then introduced evidence and the motion to dismiss at the close of all the evidence was not renewed, as required by C.S. § 4643. State v. Helms, 181 N.C. 566, 107 S.E. 228; State v. Hayes, 187 N.C. 490, 122 S.E. 13; State v. Bittings, 206 N.C. 798, 175 S.E. 299.

The second exception was waived by the introduction of evidence by the defendant and the failure to renew the motion to dismiss at the close of all the evidence.

The third exception is to the refusal of the Court to permit one of the witnesses for the defendant to testify to statements made by defendant on the morning following the alleged crime, unless it was understood that the defendant was to testify in his own behalf.

In State v. McNair, 93 N.C. 628, the Court said: "It is settled by repeated adjudications, that declarations of a prisoner, made after the criminal act has been committed, in excuse or explanation, at his own instance, will not be received; and they are competent only when they accompany and constitute part of the res gestae." State v. Stubbs, 108 N.C. 774, 13 S.E. 90; State v. Peterson, 149 N.C. 533, 63 S.E. 87.

In view of the facts in the instant case, unless the evidence was to be offered in corroboration of the defendant's testimony it was not admissible.

"Evidence may be both corroborative and...