State v. Flippin

• Decision Date: 15 March 1972
• Docket Number: No. 79,79
• Citation: 186 S.E.2d 917,280 N.C. 682
• Parties: STATE of North Carolina v. Willie FLIPPIN.
• Court: North Carolina Supreme Court

Page 917

186 S.E.2d 917

280 N.C. 682

STATE of North Carolina v. Willie FLIPPIN.

No. 79.

Supreme Court of North Carolina.

March 15, 1972.

Atty. Gen. Robert Morgan, Asst. Atty. Gen. Burley B. Mitchell, Jr., and Associate Atty. Gen. Edwin M. Speas, Jr., for the State.

Price, Osborne & Johnson by D. Floyd Osborne, Eden, and Gwyn, Gwyn & Morgan by Melzer A. Morgan, Jr., Reidsville, for defendnat.

BRANCH, Justice.

Defendant assigns as error the failure of the trial judge to instruct the jury that they could return a verdict of assault with intent to commit rape or of assault on a female.

Rape is the carnal knowledge of a female person by force and against her will. State v. Primes, 275 N.C. 61, 65 S.E.2d 225; State v. Crawford, 260 N.C. 548, 133 S.E.2d 232. 'Carnal knowledge' is effected in law if there is the slightest penetration of the female sex organ by the male sex organ. State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190; State v. Jones, 249 N.C. 134, 105 S.E.2d 513. The provisions of G.S. § 15--169 and G.S. § 15--170 are pertinent to decision of this assignment of error and are set out below.

§ 15--169. Conviction of assault, when included in charge.--On the trial of any person for rape, or any felony whatsoever, when the crime charged includes an assault against the person, it is lawful for the jury to acquit of the felony and to find a verdict of guilty of assault against the person indicted, if the evidence warrants such finding; and when such verdict is found the court shall for defendant. found guilty of an assault, for any term now allowed by law in cases of conviction when the indictment was originally for the assault of a like character.

§ 15--170. Conviction for a less degree or an attempt.--Upon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime.

The case of State v. Hicks, 241 N.C. 156, 84 S.E.2d 545, involved a charge of armed robbery, one of the felonies included within the provisions of G.S. § 15--169. The Court there considered the sufficiency of the evidence to support a conviction of a lesser included offense, and stated:

'. . . The notable fact here is that the crime of robbery Ex vi termini includes an assault on the person.

'. . . Hence, there is no such necessity if the State's evidence tends to show a completed robbery and there is No conflicting evidence relating to elements of the crime charged. Mere contention that the jury might accept the State's evidence in part and reject it in part will not suffice.'

This Court considered the same question in State v. Jones, supra. There the State's evidence tended to show that defendant, who lived in the same apartment building found an eight-year-old girl alone in her parents' apartment. He removed her clothes and carnally abused her. He told the child that 'if she told it he was going to kill her.' The defendant contended that the trial judge erred because he instructed the jury to return one of three possible verdicts, to wit: (1) guilty of rape, (2) guilty of rape with recommendation that the punishment be imprisonment in State's Prison for life, and (3) not guilty. The Court, rejecting defendant's contention, stated:

'. . . (T)he State's evidence was positive as to each and every element of the crime charged in the bill of indictment. There was no conflict in the evidence relating to any element of the crime charged. . . . Disbelief of the testimony of the child as to any essential element of the crime charged in the bill of indictment would not warrant a conviction for a lesser offense but would require a verdict of not guilty.'

In State v. Williams, 275 N.C. 77, 165 S.E.2d 481, we find the following statement:

'All the evidence is to the effect that each defendant had actual sexual intercourse with (prosecutrix) and that she, kidnapped, captive and helpless, submitted solely because fearful of death or serious bodily harm if she resisted. There is no particle or trace of evidence that (she) at any time willingly permitted either defendant to have sexual intercourse with her. . . . There being no evidence that would warrant a verdict of guilty of the included crime of assault with intent to commit rape, the court properly refused to instruct the jury with reference to such verdict.'

In instant case defendant offered no evidence. Nor did his counsel by cross examination elicit evidence which conflicted with testimony as to any element of the crime. Each element of the crime of rape is supported by testimony in the record. Disbelief of testimony relating to any essential element of the crime charged would require a verdict of not guilty.

There was no error in the court's failure to instruct the jury on the crimes of assault with intent to commit rape and of assault on a female.

Defendant next contends that the court erred by not fully explaining the presumption of innocence and reasonable doubt.

Judge Exum instructed the jury as follows:

'Under our system of justice when a defendant's plea is not guilty he is not required to prove his innocence. He is presumed to be innocent.

The State must prove to you that the defendant is guilty beyond a reasonable doubt. If after weighing and considering all of the evidence you are fully satisfied and entirely convinced of the defendant's guilt then you would be satisfied beyond a reasonable doubt. On the other hand if you have any doubt based on reason and common sense arising from the evidence in the case or the lack of evidence as to any fact necessary to constitute guilt you would have a reasonable doubt and it would be your duty to give the defendant the benefit of that doubt and find him not guilty.

In Strong's, 3 North Carolina Index, 2d, Criminal Law, § 112, p. 3, it is stated:

There are no sterotyped forms of instructions. The trial judge has wide discretion in presenting the issues to the jury, so long as he charges the applicable principles of law correctly, and states the evidence plainly and fairly without expressing an...