State v. Cooke

• Decision Date: 06 November 1918
• Citation: 97 S.E. 171,176 N.C. 731
• Parties: STATE v. COOKE.
• Court: North Carolina Supreme Court

97 S.E. 171

176 N.C. 731

STATE v. COOKE.

Supreme Court of North Carolina

November 6, 1918

Appeal from Superior Court, Franklin County; Calvert, Judge.

Perry Cooke was convicted of seduction, and he appeals. No error.

Allen and Brown, JJ., dissenting.

In prosecution for seduction, prosecutrix held sufficiently corroborated, and a submission of the cause to the jury held proper.

W. M Person, of Louisburg, and T. T. Hicks, of Henderson, for appellant.

The Attorney General, Frank Nash, Asst. Atty. Gen., and W. H Yarborough, Jr., and Ben T. Holden, both of Louisburg, for the State.

CLARK C.J.

The defendant has twice been convicted by the unanimous verdict of a jury--24 men--each of whom found that the defendant was guilty beyond a reasonable doubt, and the judge on both occasions held that there was sufficient evidence in support of the woman's testimony to submit the case to the jury. This court is now asked by the defendant to adjudge whether there was supporting evidence when it has convinced two juries who heard it, saw the demeanor of the witnesses upon the stand, and who by the Constitution were charged with finding the facts. The judge set aside the verdict of the first jury, but it was stated on the argument, and not controverted, that this was not upon the ground of any doubt of the correctness of the verdict, but because after verdict the defendant raised the technical point that one of the jurors was related to the prosecutrix. This did not require the judge to set aside the verdict, but was a matter resting entirely in his discretion. State v. Maultsby, 130 N.C. 664, 41 S.E. 97, and cases there cited, and citations thereto in the Anno. Ed.

Reviewing this testimony, the presiding judge properly submitted it to the jury. The prosecuting witness testified that she and the defendant "became engaged in the fall of 1916," and that at Christmas "he had promised to marry me, and I thought he would keep his word, so I yielded to him." She testified that he began to visit her in the summer of 1915, and continued to do so till April or May, 1917, when he ceased coming; that during this time he would come to see her, and she would sometimes meet him at church, and he would take her home; that she had other beaux, but was never engaged to any of them, nor was there any improper conduct with them. Four witnesses on the part of the state and three on the part of the defendant testified to the good character of the prosecutrix, and there was no testimony to the contrary. The child was born in September, 1917. The above was testimony in support, even if there was nothing more though in this case there was. In State v. Horton, 100 N.C. 448, 6 S.E. 241, 6 Am. St. Rep. 613, the court says:

"The virtuous character and conduct of the prosecutrix was proved and conceded; so the testimony of the injured [girl] was not 'unsupported,' but derived confirmation from that of others, as the statute prescribes."

In State v. Malonee, 154 N.C. 202, 69 S.E. 787, the court says:

"The prosecutrix testified to the promise of marriage, the seduction, and her innocence and virtue. A child was born to her, and was 18 months old at the time of the trial. There was evidence tending to show that prior to her alleged seduction by the defendant she had always been a woman of good character and led a blameless life, and that as a schoolgirl she had borne a good reputation with her teacher and schoolmates. This was sufficient to constitute supporting testimony within the meaning and requirement of the statute."

These two cases are exactly in point, and, if there had been no other evidence, amply sustain the action of the judge and of the two juries. But there is other supporting testimony in this record of the promise of marriage. For nearly two years the defendant was going with the prosecutrix, from the summer of 1915 to April or May, 1917. She testifies to this, and is supported by the testimony of her mother, of her father, and of the defendant himself. This was held sufficient in State v. Moody, 172 N.C. 967, 90 S.E. 900, in which Walker, J., speaking for a unanimous court and citing several cases, held as set out in the headnote:

"Criminal Law--Seduction--Trials--Supporting Evidence--Statutes.--Upon trial under an indictment for seduction under a breach of promise of marriage, Revisal, § 3354, requiring supporting evidence to make that of the prosecutrix competent upon the three elements of the crime, it is not necessary that the supporting evidence be sufficient, as substantive evidence, for conviction; and where the good character of the prosecutrix before the act has been testified to by other witnesses, the act itself admitted, and there is testimony that the defendant had paid the prosecutrix exclusive and assiduous attention for years under circumstances evidencing that he was her accepted lover, her testimony as to the promise of marriage is sufficiently supported by the testimony of others to be competent within the meaning of the statute."

This case has been approved and followed in State v. Fulcher, 97 S.E. 2, at this term.

It is not within the province of this court to review and weigh the testimony and determine what the verdict should have been; that was a matter for the jury, subject to the revising power of the trial judge, if he deemed the verdict against the weight of the testimony, which he did not. The only power committed to this court is to say whether there was any testimony in "support" of the woman's testimony, and the above-cited cases hold that the circumstances above recited, and which appeared in this case, were sufficient to be "supporting testimony." It must be remembered that this offense is always committed in secret, and the testimony "in support" is not required to be by an eyewitness.

But there was further corroborating testimony in this case. There was evidence in this case by the father and mother that when her condition was first discovered the prosecuting witness told them that she and the defendant had been engaged, and that the defendant was the father of her child. In State v. Whitley, 141 N.C. 823, 53 S.E. 820, the defendant excepted that the mother of the prosecutrix was allowed to testify, as here, that after she discovered her daughter's condition the daughter told her that the defendant had promised to marry her and she loved him. The court, at page 825 of 141 N. C., at page 821 of 53 S. E., said:

"The statements made by the prosecutrix to her mother were competent to corroborate her testimony on the trial."

In State v. Kincaid, 142 N.C. 657, 55 S.E. 647, similar statements were admitted as corroboratory evidence. Again, it is said in State v. Pace, 159 N.C. 464, 74 S.E. 1019:

"It is settled that statements to others that the prosecutrix and the defendant were going to be married are competent for the purpose of corroborating the testimony of the prosecutrix that the defendant had offered and promised to marry her."

There was further evidence that on Christmas Day, 1916, after their engagement, the defendant came to her home and took her in his buggy to Mrs. Tharrington's to spend the night, and the next day to Mr. Carter's, and they were there several days. This was evidence tending to corroborate the engagement, which she testified to as then existing, and neither Mr. or Mrs. Tharrington, nor Mr. Carter, was called to contradict this significant testimony. It is a most pregnant fact in corroboration that the child was born exactly nine months afterwards.

Upon the above authorities there was abundant evidence to carry the case to the jury of the vicinage, who, knowing the witnesses and the credit which should be given their testimony, and having the opportunity to observe their conduct and bearing on the stand and other pointers to the truth (which cannot appear in the dry transcript of the record to this court), have acted within the authority confided to them by the Constitution, and upon their oaths have twice said that beyond a reasonable doubt on the part of any of the 24, against none of whom the defendant urged any objection, that he was guilty beyond a reasonable doubt. To require more evidence in a case of this kind would be practically to repeal the statute. There is no reason why the requirement in the statute should in this case extend beyond what the court has heretofore held.

There is no crime more despicable than this. It is committed in secret, by lust and lying, by deception and the stronger taking advantage of the weaker. Yet under the influence of medieval ideas it was not made a crime in this state till the act of 1885 (Laws 1885, c. 248). The proviso that the testimony of the woman should not be sufficient to convict, unless supported, was not, however, intended to "throw the monkey wrench into the machinery," and prevent the possibility of conviction. Prior to that time the only remedy was by a civil action, with the humiliating requirement under the common law that it should be brought by the father, alleging the loss of the services of his daughter as his servant. But even then the common law did not disparage the testimony of the daughter as unworthy of belief unless "supported."

Upon the statute as written and upon the precedents there was not only evidence in support, but as much as can ordinarily be offered as to an offense of this kind committed in secrecy. There was unqualitied evidence of the promise of marriage though in State v. Ring, 142 N.C. 596, 55 S.E. 194, 7 L. R. A. (N. S.) 669, 9 Ann. Cas. 604, it was held that it was sufficient if this could be reasonably inferred from the evidence. There was evidence of the good character of the girl, which was held sufficient supporting testimony in State v. Horton, 100 N.C. 448, 6...