State v. Dill

• Decision Date: 27 September 1922
• Docket Number: 1.
• Citation: 113 S.E. 609,184 N.C. 645
• Parties: STATE v. DILL.
• Court: North Carolina Supreme Court

113 S.E. 609

184 N.C. 645

STATE v. DILL.

No. 1.

Supreme Court of North Carolina

September 27, 1922

Appeal from Superior Court, Beaufort County; Connor, Judge.

Ed Dill was convicted of rape, and he appeals. No error.

While on a trial for rape, silence or delay of the complaining witness in complaining may be urged to lessen the force or credibility of her evidence, such delay may be explained or excused by proof of sufficient cause, and it was proper to charge that it was incumbent on the state, if it could, to show an outcry at, or shortly after, the occurrence, and that failure, "unless satisfactorily explained by the evidence," would be a suspicious circumstance against the credibility of her testimony.

The prisoner was convicted of the crime of rape upon the person of one Mattie E. Williams, and appealed from the sentence of death pronounced by the court. A synopsis of the evidence is necessary to explain the exceptions.

The state's evidence tended to show the following circumstances: The prosecutrix is the wife of Samuel Williams. Their only child is two years of age. They lived at Dr. Mariner's place, on the Pea Ridge road, about three miles from Belhaven, with the husband's mother, sister and brother. Mrs. Satterthwaite, a sister of the prosecutrix lived at Hope Store, a quarter of a mile down the road. Seventy-five yards from the junction of the Pea Ridge and Belhaven roads was the Williams mail box. Along the road between the Williams home and the mail box two-thirds of the adjoining land is cleared and one-third is woods. There are two or three houses on the cleared land. At about eight in the morning of a Thursday in March, 1922, while her husband was working at a distance in the field, the prosecutrix went to the mail box, and from there to the home of her sister, where she remained perhaps 15 minutes. She did not know how long it took her to walk to her sister's. On her return home, impelled by sudden indisposition, she went into the woods, and while there was criminally assaulted by the prisoner. She begged, pleaded, and struggled. After accomplishing his purpose, the prisoner said that, if she told what he had done, he would kill her husband and the whole family. She had known the prisoner for some time and he had never before offered her any indignity. As she walked home she wept, but made no outcry. On reaching home about 10 o'clock, she went first to her room for a minute or two and then to the cook room, where she found her husband's mother and sister. She remained there until dinner time, when her husband came. He was at home Thursday, Friday, and a part of Saturday. He and she occupied a room together. She mentioned the subject first to her husband on Sunday night after they had retired. In the meanwhile she had frequently wept in his presence, and had repeatedly refused to tell him the cause. She testified:

"From the moment this occurred until I told my husband my physical condition was such that I was just feeling it all the time, and I could not rest in any way, and when he mentioned anything to me I couldn't keep from crying; it would hurt his feelings, and he would turn and go off, and not say anything to me. I do not mean that he turned in anger. He would ask me if I was sick, and didn't want a doctor, and I told him, 'No.' He would ask what was the matter, and I would commence crying, and he would leave me. He couldn't bear to see me cry. * * * I did not tell him before Sunday simply because I didn't see how I could. Such a thing as that I would rather die than tell it; then he threatened our lives; that was a hard part, too; it made me fearful for myself and my family's safety. * * * I did not mention it to him until Sunday night after we had gone to bed. I saw my sister a few minutes Sunday night. I lived with my sister before I was married, and we were fond of each other."

The prosecutrix was corroborated by her husband, who said also that the prisoner came back to his home at 10:30 and Dr. Mariner testified that about a week after the assault was said to have occurred he examined the prosecutrix and found her genital organs bruised and inflamed. There was evidence tending to show that the character of the prosecutrix and her husband is good.

For the defendant there was evidence tending to show an alibi. Noland Davis testified that the prisoner came to his house at 7 o'clock Thursday morning, saying he had come from Williams' and remained there until after the mail car passed, and that the two then went to Satterthwaite's store and were together until 9:45, when the prisoner said he had to go to Belhaven. J. B. Satterthwaite, a witness for the defendant, testified that he is a brother-in-law of the prosecutrix, and conducted a mercantile business at Hope Store; that the prosecutrix left his house at 8 o'clock, going home; that between 6 and 7 o'clock the prisoner passed his store going to Williams', and about 10 o'clock came to the store with Norval Davis and asked what time it was. He did not act as if drinking, and was not under the influence of liquor. The prisoner testified:

"I went to Williams' house on Thursday morning. I stopped at Mr. Satterthwaite's store. I was riding on my wheel, and I left the store and went to Mr. Williams'. He was in the kitchen. I went from the house to the stables to hitch up the mules. After the mules were hooked up, he told me to take my wheel and carry a package to Mr. Stevens. Stevens was a conjure doctor. He told me it was 25 minutes of 8 or half past 7 at that time. He told me to meet the fellow on the road. I went as far as Norval Davis's. I stopped there and sat on the front porch and talked with Norval Davis until about half past 9. I went from there to Mr. Satterthwaite's store with Norval. We walked side by side, and I carried the wheel with me. Norval asked Mr. Satterthwaite to carry him to Hyde county, and Mr. Satterthwaite agreed to do it. I left about the same time they did. I rode my wheel. It was about 10 o'clock. I did not pass anybody. The only time I saw Mrs. Williams that morning was through the window. That was about 7 o'clock in the morning. When I got back I put my wheel over the fence. Mr. Williams was drinking some water from the kitchen well five or six steps from the kitchen. Mr. Williams asked me if I wanted anything. I told him I wanted some candy. He told me, 'I haven't anything very much for you to do,' and gave me a bush hook to work on the ditch. After I came out of the shop I looked up the road and saw Dr. Mariner coming in. I went on down the field to go to Norval Davis's around 7 o'clock in the morning. I did not see Mrs. Williams. On my way back from Satterthwaite's store I did not see anybody. I worked in the field two hours from 10 to 12. I stopped at 12 o'clock and walked out with Haywood. I asked him if he thought I had time to go home and get dinner. He said, yes, if I didn't take too long to eat. I didn't go back to work for Mr. Williams that afternoon because I stopped to get my corn--some new corn I wanted to plant. I worked for Mr. John Craddock that evening, and on Saturday I went to Leechville. Saturday evening I went to Belhaven; coming back I went to Mr. Williams'. I saw Mr. Williams, Mrs. Williams and their mother. I bought some baking powder. I went to Belhaven with Mr. Williams Sunday morning. We went to see the conjure doctor. I don't know a thing about the crime against Mrs. Williams."

There was evidence tending to corroborate the prisoner's theory.

In rebuttal a witness for the state, Lesofsky, said:

"I had a conversation with Ed Dill about this matter while he was in the jail at Belhaven. I have known Dill for 20 years. I saw a crowd and went to the jail. I didn't know who it was at the time, but found it was Ed Dill. There was a crowd on the corner, two or three or more. There was nobody there except me and him when I spoke to him. I went to see him just for curiosity. No one heard the conversation except him and me. Nothing said by me or anybody by way of threats or inducements. I said, 'Ed, what in the devil are you doing in here?' He said, 'I was drunk; I got a white woman, and the white woman said I done something to her, but I wouldn't dispute her word.' I didn't say anything to him then. He was sober, and not frightened."

W. C. Rodman, Ward & Grimes and Daniel & Carter, all of Washington, N. C., for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

ADAMS J.

During the progress of the trial, as a matter of caution, we presume, the prisoner's counsel entered of record 21 exceptions, but they have restricted their brief to a consideration of only 5. All not included in the brief are deemed to be abandoned. Rule 34, 174 N.C. 837, 81 S.E. xii; amended rule, 182 N.C. 922, 110 S.E. vii; State v. Freeman, 146 N.C. 615, 60 S.E. 986; Britt v. Carolina Northern R. R., 148 N.C. 37, 61 S.E. 601; State v. Spivey, 151 N.C. 679, 65 S.E. 995.

The first to be considered is exception 17. The charge was concluded in the afternoon, and, after deliberating three or four hours, the jury returned to the courtroom, and one of the jurors requested that the testimony of the prosecutrix be read by the stenographer. The court thereupon cautioned the jury that they must rely upon their recollection, and...