State v. Harward, 826
Decision Date | 18 June 1965 |
Docket Number | No. 826,826 |
Citation | 264 N.C. 746,142 S.E.2d 691 |
Court | North Carolina Supreme Court |
Parties | STATE, v. William Layton HARWARD. |
Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Richard T. Sanders for the State.
W. R. Dalton Jr., Burlington, for defendant.
Defendant assigns as error the denial of his motion is arrest of judgment.
The crime against nature is sexual intercourse contrary to the order of nature. It includes acts with animals and acts between humans per anum and per os. State v. Fenner, 166 N.C. 247, 80 S.E. 970. State v. Griffin, 175 N.C. 767, 768, 94 S.E. 678, 679. 'Proof of penetration of or by the sexual organ is essential to conviction.' State v. Whittemore, 255 N.C. 583, 585, 122 S.E.2d 396. The crime agianst nature is a felony. G.S. § 14-177; State v. Jernigan, 255 N.C. 732, 122 S.E.2d 711.
The evidence is sufficient to make out a prima facie case against defendant of that crime with a male person per os. The jury returned a verdict of guilty of an attempt to commit the crime. The record does not show the ages of the actors, but during the oral argument in Supreme Court it was disclosed that both were over the age of sixteen years.
Upon the trial of an indictment for the crime against nature the accused may be convicted of the offense charged therein, or the attempt to commit the offense. G.S. § 15-170; State v. Savage, 161 N.C. 245, 76 S.E. 238. An attempt to commit the crime against nature is an infamous act within the meaning of G.S. § 14-3 and is punishable as a felony. State v. Mintz, 242 N.C. 761, 89 S.E.2d 463; State v. Spivey, 213 N.C. 45, 195 S.E. 1.
Defendant's motion in arrest of judgment is based on the proposition that G.S. § 14-202.1, a statute passed in 1955 and codified under the title 'Taking Indecent Liberties with Children,' repealed, by implication, the offense of attempt to commit the crime against nature, or at least reduced it from a felony to a misdemeanor.
In the opinion, delivered by Parker, J., in State v. Lance, 244 N.C. 455, 94 S.E.2d 335, the construction which defendant now urges for G.S. § 14-202.1 was considered directly and rejected by this Court. Defendant would have us reconsider and overrule Lance. The gist of the Lance opinion is:
'Ch. 764, Session Laws 1955, now codified as G.S. § 14-202.1, is captioned 'An act to provide for the protection of children from sexual psychopaths and perverts', and reads:
Rodman, J., in State v. Whittemore, supra, refers to Lance with approval in these terms:
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State v. Hageman, 206A82
...attempt to commit a crime against nature, State v. Spivey, supra; State v. Mintz, 242 N.C. 761, 89 S.E.2d 463 (1955); State v. Harward, 264 N.C. 746, 142 S.E.2d 691 (1965), all constitute misdemeanors which are infamous, done in secret and malice or with deceit and intent to defraud, and ar......
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