State v. Freeman
| Decision Date | 26 March 1888 |
| Citation | 5 S.E. 921,100 N.C. 429 |
| Parties | STATE v. FREEMAN. |
| Court | North Carolina Supreme Court |
Appeal from criminal court, New Hanover county; MEARES, Judge.
On prosecution for rape. Defendant appeals.
A charge that it must be proven beyond a reasonable doubt that the crime was committed by the prisoner, and that his absence, if shown, would be a full defense, held a sufficient charge, notwithstanding the subsequent instruction that the burden of proving an alibi was upon the one setting it up.
T. W Strange, for appellant.
The Attorney General, for the State.
The prisoner is charged with having committed a rape upon the body of one Addie Sellers, and upon his trial in the criminal court of New Hanover county at November term, 1887, was found guilty by the jury, and from the judgment rendered upon the verdict appealed to this court. The prosecutrix, a married woman of the age of 23 years, and residing alone, with a young child, in the city of Wilmington, her husband being at work in Georgia, testified as follows: In the afternoon of the day preceding the night on which the outrage was perpetrated, while the witness was in conversation with one Mary Jones, a colored woman, who had come to her house (which contained but a single room,) the prisoner came to the door and asked witness if she had any empty bottles to sell, remaining but a few moments, and then inquired if witness lived there alone. Witness replied, "Yes," and that her husband had gone to Georgia. She did not at the time know the name of the prisoner, but she noticed that his voice was a very peculiar one. Late in the night, between the hours of 1 and 2 o'clock, while alone with her child, a person knocked at the door, and asked to be let in. On her refusal in positive terms to admit him, he inquired if there were any fast girls in the neighborhood; and witness told him of a house where, it was said, lived women of that class, and he went away. In a little time he returned, and again asked to be admitted, adding that he would not hurt her. Being again refused, he said there were four men outside, and, if she did not open the door, they would break in, to which witness replied that she would shoot him if he forced the door open. He then, leaving the front door, went to a window, and tried to break it open, at the time firing a pistol. Whereupon she was frightened, and screamed in a very loud voice. He then went to the back door, and tried to force an entrance, which she resisted by pushing against it; but he overcame her resistance, and forced the door open, and entered the room. Thereupon she retreated towards the front door, screaming with all her might, when he advanced, seized her by the throat, and choked her with such force as to suppress her cries, threw her down upon the floor, dragged her out to a fence a few feet from the house, and, still holding her by the throat, accomplished his purpose. He then inquired if she knew him, and she, fearing that he would take her life if she did know him, answered, "No," she did not know him; and she gave the answer in fear for her life, while she could recognize and identify him both from his appearance, and unusual voice, but did not then know his name, nor did it occur to her that he was the same man who had called the day before, and learned about her being alone; but, after the rape was consummated, she called to mind the coincidence. When he effected an entrance, there was a bright light burning in the room, and she had a good look at him, and has no doubt whatever of the identity of the prisoner as the person who committed the crime. Very soon after, afraid to remain alone, she went to the house of one Robert Skylock, an elderly colored man who resided in the neighborhood in a house of his own, part of which is rented out, and occupied by one ___ Smith, an elderly white woman, to obtain shelter and protection; and, after telling him of the criminal assault, requested him to go and nail up the doors of her house, which was done. There was corroborative testimony from others who heard the cries after midnight, and the report of the pistol; and there were many witnesses who swore to the presence of the prisoner at his own house with his wife on the night in question, and tending to show that he remained at home during the period within which the criminal assault was made. It is not deemed necessary to set out the evidence in detail (which is voluminous, and extends over more than 20 pages of legal cap) in order to a proper understanding of the rulings to which exception is taken by the prisoner.
1. The first exception is to the disallowance of the challenge to one S. S. Mitz, a juror, tendered to the prisoner for that he was not a freeholder, and to the refusal of the court to permit an inquiry into the fact of this alleged disqualification. The juror was one of the number of the special venire drawn from the jury-box under the direction of the act of 1885, c. 63, § 19, which requires the jurors to be taken from the box prepared by the board of county commissioners, and to possess the qualifications of jurors in the superior courts. Hence such as would be competent, and whose names are directed to be put in the jury-box from which, in the superior courts, the regular panel is formed, according to section 1722 of the Code, are competent to serve in the criminal court, as they are drawn in the same manner; and among the required qualifications is not that of having a freehold estate.
State v. Wincroft, 76 N.C. 38. But, if there were error in the ruling, it is removed by the fact that the juror was peremptorily challenged, and a jury of good and lawful men constituted without exhausting the number of jurors allowed to be peremptorily challenged, with which the prisoner was content. State v. Arthur, 2 Dev. 217; State v. Hensley, 94 N.C. 1021.
2. The second exception is to the admission of the declarations made by the prosecutrix to Skylock and Mrs. Smith, soon after the occurrence, when she went over to their house, and in which she gave a minute and particular account of what transpired at her own house. Testimony was received from her of what she said to others, at different times, when detailing the occurrence. The objection is not to her making complaint of the outrage, for this is corroborative of her testimony at the trial, and tends to repel the inference, drawn from silence and inaction, of the connection having been with her assent, but that the particular facts cannot be given in evidence to support her credit, unless it has been assailed. Such seems to be the law as laid down in the decisions of the courts, and thence derived by recognized and approved...
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