State v. Gray

• Decision Date: 31 December 1860
• Citation: 8 Jones 170,53 N.C. 170
• Court: North Carolina Supreme Court
• Parties: STATE v. WESLEY GRAY.

8 Jones (NC) 170

53 N.C. 170

STATE

v.WESLEY GRAY.

Supreme Court of North Carolina.

December Term, 1860.

In an indictment under our statute, Rev. Code, chap. 34, sec. 5, for carnally knowing and abusing an infant female under the age of ten years, it was held error in the Judge to charge the jury, that proof of emission of seed was not necessary in order to convict the prisoner.

THIS was an indictment, under the statute, against the defendant, for carnally knowing and abusing a female infant under the age of ten years, tried before SAUNDERS, J., at the last Fall Term of Guilford Superior Court.

The indictment charged, that the defendant did carnally know and abuse one Louisa E. Wheeler, alias Louisa E. Stack, a female under the age of ten years. It appeared, in evidence, that she was between the ages of eight and nine years, at the time of the commission of the offense; that she was of ordinary size, and of more than ordinary intelligence. She testified that she was sent to Jamestown to carry dinner to her father, who was at work there, it being about a mile from where she lived, and that she walked on the track of the railroad; that her father was engaged in digging a well there; she saw the prisoner at the well; that he was not at work; that after her father finished his dinner, he ordered her home; that when she started, the prisoner followed her and overtook her in less than a quarter of a mile; that he was fifteen years old, and as she did not like to travel with him, she stopped at one Jackson's, who lived near the road, to get some water; that prisoner proposed to wait for her, and called her two or three times; that she supposed he was gone, but on getting into the road, he again joined her; that going a short distance they met his sister and her husband, who proposed that he should go back with them, which he declined; she went on and he soon overtook her again, and began to talk “nasty words;” that she picked up a rock or stone and told him, if he touched her, she would throw it at him; that he thereupon seized her by her shoulders, pushed her a few steps out of the road, pulled up her clothes, threw her down and got on her, and tried to stop her mouth; that she hollowed as loud as she could; that he remained on her some five minutes; that he hurt her very much when he entered her person, and made her private parts bleed; that he then got off of her, got some switches and threatened to whip her if she did not promise not to tell her mother; that he whipped her until she promised, and then left her; that she went on home, and on going into the house, told her mother that prisoner had nearly killed her. Her mother was then examined, and testified to what the child had stated.

Doctor Pugh testified, that he was called the next day, examined the child, and found her private parts very much swoolen, torn and lacerated; that there had been a penetration, certainly, as much as three-fourths of an inch, or perhaps an inch and a half; that he was decidedly of opinion that the entry had been as far as it was possible in a child of her age. The father also testified to having seen the prisoner at the well when the girl left, but did not see him afterwards.

The Court charged the jury, that if the testimony of the girl was to be believed, and the Doctor was correct in his opinion, and the jury believed it, the offense was made out, and that it was the duty of the jury to convict. That penetration was sufficient, and emission not necessary to be proven. Defendant's counsel excepted.

Verdict for the State. Judgment. Appeal by defendant.

Attorney General, for the State .

Gorrell, for the defendant .

BATTLE, J.

The main question in this case, and the only one which we deem it necessary to notice particularly, is, whether upon an indictment, under our statute, for carnally knowing and abusing a female child under the age of ten years, it is necessary to...