State v. Gibson

• Decision Date: 06 May 1942
• Docket Number: 77.
• Citation: 20 S.E.2d 51,221 N.C. 252
• Parties: STATE v. GIBSON.
• Court: North Carolina Supreme Court

20 S.E.2d 51

221 N.C. 252

STATE v. GIBSON.

No. 77.

Supreme Court of North Carolina

May 6, 1942

Criminal prosecution upon indictment charging defendant with feloniously ravishing and carnally knowing a female child six years of age. C.S. § 4204.

Verdict Guilty of rape as charged in the bill of indictment.

Judgment Death by asphyxiation.

Defendant appeals to Supreme Court, and assigns error.

Harry McMullan, Atty. Gen., and T. W. Bruton and G. B. Patton Asst. Attys. Gen., for the State.

DeVere C. Lentz, of Asheville, for appellant.

WINBORNE Justice.

Scrutinous consideration of each of the exceptions taken in behalf of defendant in trial below fails to show prejudicial error in the trial in Superior Court.

We advert to some of the exceptions.

The first is to the refusal of the court to grant motion to quash the bill of indictment, made by defendant after defendant had pleaded not guilty and after the jury had been selected and empaneled. The grounds upon which the motion is based are not stated in the record. Yet in brief of defendant, filed in this Court, it is stated that the bill of indictment should have had the word "intent" in it, and should have designated the alleged victim in her real name "Rolison" instead of "Robinson".

At the outset the motion for consideration as a matter of right was not made in time. Decisions of this Court are uniform in holding that a motion to quash the bill of indictment, if made after plea of not guilty is entered, is addressed to the discretion of the trial court. The exercise of such discretion is not reviewable on appeal. State v. Jones, 88 N.C. 671, 672; State v. Pace, 159 N.C. 462, 74 S.E. 1018; State v. Beal, 199 N.C. 278, 154 S.E. 604.

In the next place "intent" is not an element of the offense for which defendant is indicted under C.S. § 4204. Deleting impertinent words this statute provides that "Every person *** who is convicted of unlawfully and carnally knowing and abusing any female child under the age of twelve years, shall suffer death". The bill of indictment sought to be quashed follows substantially the words of the statute as to essential elements, and, hence, in conformance with the rule ordinarily applied in the decisions of this Court, meets the requirement of law. State v. Cole, 202 N.C. 592, 163 S.E. 594; State v. Jackson, 218 N.C. 373, 11 S.E.2d 149, 131 A.L.R. 143, and numerous other cases.

Lastly, if advantage of the alleged variance between the real name of the alleged victim, and that given in the bill of indictment, could be taken on motion to quash rather than upon motion to nonsuit as was done in State v. Whitley, 208 N.C. 661, 182 S.E. 838, we are of opinion and hold that the doctrine of idem sonans applies. State v. Patterson, 24 N.C. 346, 38 Am. Dec. 699; State v. Hester, 122 N.C. 1047, 29 S.E. 380; State v. Drakeford, 162 N.C. 667, 78 S.E. 308; State v. Chambers, 180 N.C. 705, 104 S.E. 670; State v. Whitley, supra; State v. Dingle, 209 N.C. 293, 183 S.E. 376; State v. Reynolds, 212 N.C. 37, 192 S.E. 871. In fact the identity of person does not appear to have been questioned on the trial.

The second exception is to the refusal of the court to strike out the testimony of the alleged victim for that, because of her age, not quite six years, she was incompetent to testify.

The competency of a child to testify as a witness in a case is a matter resting in the sound discretion of the trial court. State v. Edwards, 79 N.C. 648; State v. Merrick, 172 N.C. 870, 90 S.E. 257, 259; State v. Satterfield, 207 N.C. 118, 176 S.E. 466; State v. Jackson, 211 N.C. 202, 203, 189 S.E. 510.

In the Edwards case Reade, J., stated: "There being now no arbitrary rule as to age, and it being a question of capacity, and of moral and religious sensibility in any given case whether the witness is competent, it must of necessity be left mainly if not entirely to the discretion of the presiding Judge. State v. Manuel, 64 N.C. 601. It may be stated however that a child of tender years ought to be admitted with great caution; and where there is doubt it ought to be excluded. The formal answers to the usual questions,-- who made you? what will become of you if you swear to a lie? and the like, are so easily taught, that...