State v. Hairston

• Decision Date: 08 January 1943
• Docket Number: 723.
• Parties: STATE v. HAIRSTON.
• Court: North Carolina Supreme Court

23 S.E.2d 885

222 N.C. 455

STATE v. HAIRSTON.

No. 723.

Supreme Court of North Carolina

January 8, 1943

Criminal prosecution tried upon an indictment charging the defendant with rape.

The prosecutrix, a woman 52 years of age and a partial invalid, resided in Salem Chapel Township, in Forsyth County, with her father who is 82 years of age and partially deaf. On Sunday night, November 30, 1941, the prosecutrix retired between 10:30 and 11 o'clock. She slept upstairs and her father slept downstairs. On this night she and her father were alone in the house. At about 1:30 in the morning the prosecutrix was awakened, the bed quilts were over her head and someone was lying on her and she was being choked. She managed to cut on the light by her bed and her assailant knocked the light off the table, disconnected it and then hit her on "the head with something very hard." She hollered several times, but her assailant had his hand over her mouth and again choked her. She managed to get her hand on his head and felt the nap of his hair and knew him to be a negro. He had sexual intercourse with her. He heard her father coming upstairs and jumped through a window, tearing off a screen which had been tacked to a frame. Upon examination of the room after the attack, a hammer was found on the bed. A bottle containing about one-third of a pint of liquor was found on the stair steps.

On the afternoon of December 1st a medical examination of the prosecutrix disclosed severe bruises, abrasions, with raw places on the face and neck, and evidence of penetration.

Defendant lived near the home of the prosecutrix, had worked for her father and had helped in the home. He had swept the house upstairs and downstairs. The prosecutrix was not able to sweep on account of her paralytic condition. Defendant was working for her father on the morning of December 1, 1941 chopping wood, when he was arrested. Shortly after his arrest, according to the State's evidence, the defendant confessed the crime to G.K. Fontaine, a deputy sheriff, and thereafter repeated his confession in the presence of a brother of the prosecutrix and Mr. Speas, another deputy sheriff. In the afternoon of the same day of his arrest, the defendant repeated his confession to E.G. Shore, sheriff of Forsyth County. The confession was taken down by a stenographer, transcribed, read to the defendant and signed by him and admitted in evidence on behalf of the State.

Defendant contends all these confessions were involuntary, that he was threatened and coerced into making them, and further contends that he does not remember making them, and if he did make them it was while he was drunk and he cannot remember what he said. The State offered evidence to the effect that defendant was not threatened in any manner, that before he confessed he was informed of his rights, that he did not have to make any statement but if he did make one it would be used against him. The evidence further discloses that on the other two occasions when the confession was repeated by the defendant he was informed of his rights and warned that his statements would be used against him.

The defendant entered a plea of not guilty and introduced evidence as to his weak mentality from childhood and of his habitual drunkenness. Defendant testified he did not commit the act for which he was being tried, but that if he did he was so drunk he did not remember anything about it.

Verdict "Guilty of rape as charged in the bill of indictment." Judgment: Death by asphyxiation. The defendant appeals, assigning errors.

Harry McMullan, Atty. Gen., and George B. Patton and Hughes J. Rhodes, Asst. Attys. Gen., for the State.

John D. Slawter and Richmond Rucker, both of Winston-Salem, for defendant.

DENNY Justice.

The defendant presents for consideration twenty assignments of error based on thirty-nine exceptions. Obviously we cannot discuss them seriatim.

The first assignment of error is to the ruling of his Honor that the confession of the defendant was voluntary. A preliminary examination of Sheriff Shore was conducted to determine whether or not the confession made to him by the defendant, which was reduced to writing, read to the defendant and signed by him, was made voluntarily. The court found as a fact that any statement made by defendant to the witness was free and voluntary. The competency of a confession is a preliminary question for the trial court, and the court's ruling will not be disturbed, if supported by any competent evidence. See State v. Manning, 221 N.C. 70, 18 S.E.2d 821, and cases there cited.

No error has been made to appear in the admission of the confession of the defendant in evidence.

The defendant assigns as error his Honor's charge, instructing the jury it could return one of two verdicts, as it found the facts to be, from all the evidence--guilty as charged in the bill of indictment or not guilty. The pertinent part of C.S. § 4639 reads as follows: "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." C.S. § 4640, reads as follows: "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 defendant is relying on the above statutes and the case of State v. Williams, 185 N.C. 685, 116 S.E. 736, 738, in which case there was ample evidence to support a conviction of a lesser offense than that charged in the bill of indictment, and the court said: "It is a well-recognized principle that where one is indicted for a crime and, under the same bill, he may be convicted of a lesser degree of the same crime, and there is evidence tending to support the milder verdict, the prisoner is entitled to have this view presented to the jury under a correct charge, and an error in this respect is not cured by a verdict convicting the prisoner of a higher offense, for, in such case, it cannot be determined that the jury would not have convicted of the lesser crime if the view had been correctly presented by the judge, upon evidence. State v. White, 138 N.C. [ 704], 715, 51 S.E. 44; State v. Foster, 130 N.C. 666-673, 41 S.E. 284, 89 Am.St.Rep. [ 876], 879; State v. Jones, 79 N.C. 630." However, in the instant case, the defendant admits he was not entitled to an instruction on the count of an assault with intent to commit rape for the reason that all the evidence tended to show the act of carnal knowledge was committed and against the will of the prosecutrix. In the trial below the defendant offered no evidence to support a contention of guilt of a lesser offense than that charged in the bill of indictment, but, on the contrary, denied the commission of the crime and interposed as affirmative defenses if he did commit the crime, insanity and drunkenness.

In view of the evidence adduced at the trial below, we think the decision of this court in State v. Jackson, 199 N.C. 321, 154 S.E. 402, 404, is controlling, in which case the court said: "At the trial of this action, there was no request by the defendant that the court instruct the jury that under the indictment upon which defendant was on trial, if the jury should fail to find that defendant is guilty of rape, as charged in the indictment, or that he is guilty of an assault with intent to commit rape, as is also charged therein, they could, in accordance with the provisions of C.S. § 4639 and C.S. § 4640, return a verdict that defendant is guilty of an assault with a deadly weapon, or of an assault upon a female, or of a simple assault. It is apparent from the record that no contention to this effect was made by the defendant or in his behalf at the trial, for the reason that all the evidence, if believed by the jury, showed that the crime of rape was committed as alleged in the indictment. No contention to the contrary was made by the defendant, on his cross-examination of the prosecutrix, or of the witnesses for the state. He offered no evidence in support of such contention. For his defense, defendant relied solely upon an alibi. State v. Williams, 185 N.C. 685, 116 S.E. 736, where it was held that the refusal of the trial judge to give the instruction requested by the defendant in that case was error, does not sustain the contention of the defendant in the instant case that there was error in the failure of the court to so instruct the jury. Where all the evidence at a trial upon an indictment for rape shows that the crime was committed, as alleged in the indictment, and the defendant makes no contention to the contrary, but for his defense relies solely upon an alibi, the principle upon which a new trial was ordered in State v. Williams, supra, does not apply." State v. Ferrell, 205 N.C. 640, 172 S.E. 186; State v. Keaton, 206 N.C. 682, 175 S.E. 296; State v. Satterfield, 207 N.C. 118, 176 S.E. 466; State v. Manning, supra.

It is contended that the charge was erroneous and misleading on the affirmative defenses of insanity and intoxication. The defendant contends that on the question of insanity the court should have instructed the jury "That if they found from the evidence that by reason of a diseased mind, the defendant had lost the power to control or govern his actions, then in that event it would be their duty to acquit him." There was some evidence to the effect that defendant had a venereal disease and that some years prior to the time of the trial below he had received medical treatment for same and thereafter served an...