State v. Garner

• Decision Date: 26 November 1901
• Citation: 40 S.E. 6,129 N.C. 536
• Court: North Carolina Supreme Court
• Parties: STATE v. GARNER.

40 S.E. 6

129 N.C. 536

STATE

v.GARNER.

Supreme Court of North Carolina.

Nov. 26, 1901.

ASSAULT TO RAPE—INSTRUCTIONS—EVIDENCE —SUFFICIENCY—QUESTIONS FOR JURY.

1. Where, on a prosecution for assault with intent to commit rape, it appeared that prosecutrix, becoming frightened at accused, who was just ahead of her, turned and ran, and was pursued by him for some distance, when he stopped on nearing a house, it was proper to instruct that, if accused acted so as to put prosecutrix in reasonable fear of him, and caused her to turn from her path, it was an assault, and, if he assaulted her, and intended to catch her, and have intercourse with her by force, against her will, and intended to overcome at all hazards any resistance she might offer, they should find accused guilty.

2. It was proper to instruct that, if an assault was committed by accused, as so defined, and the jury had a reasonable doubt of a felonious purpose to effect an actual sexual intercourse by force against prosecutrix's will, they should find him guilty of simple assault.

3. On a prosecution for assault with intent to rape it is not prejudicial to accused for the court in defining a simple assault to state the punishment.

4. Prosecutrix, with her 8 year old brother, was walking along a railroad, when she observed accused, a colored man, about 20, some distance ahead, going in the same direction. Accused slowed his gait, as did prosecutrix. Accused kept stopping, and looking back, and folding his arms in front of him and opening them, and shook his hat at her. Prosecutrix changed to a dirt road, and accused did likewise, and she, becoming frightened, turned and ran, accused pursuing her until he stopped on coming in sight of a house to which prosecutrix was fleeing. There was a school house, and school in session, about 200 yards from where prosecutrix began to run, and two dwellings in sight, where people lived. Held sufficient, on indictment for assault with intent to rape, to require submission to the jury.

Furches, C. J., and Douglas, J., dissenting.

Appeal from superior court, Gaston county; Hoke, Judge.

Walter Garner was convicted of an assault with intent to commit rape, and he appeals. Affirmed.

Defendant was tried upon a bill of indictment for an assault with intent to commit rape upon Beulah White. A concise statement of the evidence shows that Beulah White, a white girl, about 14 years old, was walking along the railroad track near Gas-tonia, accompanied by her little brother, about 8 years old. She saw defendant, a colored man, about 19 or 20 years old, of ordinary and usual size and vigor of a man of that age, walking along the track about 200 yards ahead of her, going in the same direction she was. While so walking, defendant slowed his gait, and she slowed hers. He would stop and look back, and she would stop; and he kept on stopping and looking, and folding his arms in front of him and opening them, and once shook his hat at her while looking back. She would change from the railroad track to the dirt road which ran parallel with it, and he would likewise change and keep in front of her. She continued to change and he continued to change until she had gotten within 30 feet of him, when he turned back, and she became so frightened she turned and ran up a side way leading towards her cousin's house, about 200 yards away, carrying her little brother by the hand. He ran after her about 60 feet, and had gotten within about 15 feet of her, when he stopped. The house at this place where he stopped could not be seen on account of the com standing in the Held. Defendant did not speak, nor did she. When she got to the porch of the house, she looked back, and saw defendant going down the railroad. The house could not be seen from the place where she began to run because of the thick corn standing in the field. There was a school house (and school was being taught therein) about 200 or 300 yards from where she began to run, and in sight, and two dwelling houses in sight, where people lived. This occurred about 3 o'clock in the afternoon. There was also evidence of defendant's flight when approached by the officers that afternoon. Defendant introduced no testimony, and demurred to the evidence of the state upon the ground that it was not sufficient to be submitted to the Jury to convict Demurrer was overruled, and defendant excepted. To the following parts of his honor's charge to the jury the defendant excepted: "(1) That if the jury are satisfied beyond a reasonable doubt that defendant acted in such a manner as to put Beulah White in reasons ble fear of personal violence from him, and caused her to turn from her path, and escape and avoid him, this would be an assault on his part; and if the jury are satisfled beyond a reasonable doubt that he assaulted her, and that he Intended to catch her, and then have sexual intercourse with her by force and violence, and against her will, that he intended to overcome at all hazards any resistance she might offer, they would render a verdict of guilty as charged in the bill of indictment (2) That If the jury are satisfied beyond a reasonable doubt that an assault was committed by defendant as defined and stated above, and have a reasonable doubt of the felonious purpose to effect an actual sexual intercourse by force and violence and against her will, as stated, they would render a verdict of not guilty of the felony, but guilty of simple assault. (3) The jury, after being out some time, returned into court, and requested the court to restate the law on the different phases of the testimony; and the court, in defining the case of simple assault, added (inadvertently) 'in which case the punishment could be a fine of fifty dollars or thirty days on the roads.'" "Verdict of "Guilty as charged in the indictment" was rendered, and motion for new trial overruled, sentence imposed, and defendant appealed.

A. G. Mangum, for appellant.

Brown Shepherd represented the Attorney General for the State.

COOK, J. (after stating the case). The first two exceptions to the charge are without merit As to the third, we do not see that any prejudice was done the defendant by his honor's charge as to the punishment. In passing upon the issues in a criminal action, the jury know that some punishment follows a verdict of guilty. They are entitled to be informed upon the law creating the offense charged, and, as the punishment prescribed is a part thereof, we see no reason why the court should not accurately and correctly inform them as to the same, rather than leave them to rely upon their own information. The difficult question involved in this case is whether the evidence and circumstances set out amount to evidence fit to go to the jury, and upon which they could reasonably...