State v. Herring

• Decision Date: 20 March 1946
• Docket Number: 217.
• Citation: 37 S.E.2d 319,226 N.C. 213
• Parties: STATE v. HERRING.
• Court: North Carolina Supreme Court

37 S.E.2d 319

226 N.C. 213

STATE v. HERRING.

No. 217.

Supreme Court of North Carolina

March 20, 1946

Appeal from Superior Court, Wayne County; Leo Carr, Judge.

The record was made complete by being made to show the arraignment of the defendant as shown by the affidavit of the Clerk of the Superior Court of Wayne County filed in this Court in response to motion of the State suggesting the diminution of the record.

The defendant was tried, convicted and sentenced to death upon a bill of indictment which charged that he, the defendant 'did unlawfully, willfully and feloniously ravish and carnally know one Clarinette Brock, a female, by force and against her will, against the form of the statute in such case made and provided, and against the peace and dignity of the State'.

From judgment of death by asphyxiation, the defendant appealed assigning errors.

T T. Thorne, of Rocky Mountain, and George E. Hood, of Goldsboro, for appellant.

Harry M. McMullan, Atty. Gen., and Hughes J. Rhodes, Ralph M. Moody, and J. E. Tucker, Asst. Attys. Gen., for the State.

SCHENCK Justice.

The assignments of error set out in the appellant's brief are not based upon exceptions briefly and clearly stated and numbered in the record, therefore they would seem not to be in compliance with Rule 21, Rules of Practice in the Supreme Court, 221 N.C. 558, yet this being a capital case wherein the lief of the defendant is at stake, these assignments of error will, nevertheless, be considered.

Under the first assignment of error set out in the appellant's brief he contends he is entitled to a discharge because the bill of indictment does not properly charge the offense of rape. The bill of indictment, in part, reads: '* * * that Gurney Herring, in Wayne County, on or before the 15th day of June, 1945, with force and arms, at and in the county aforesaid, did unlawfully, willfully and feloniously ravish and carnally know one Clarinette Brock, a female, by force and against her will '. The indictment is sufficient to support the verdict of guilty of the capital offense and judgment of death pronounced thereon. State v. Farmer, 26 State v. Storkey, 63 N.C. 7; State v. Johnson, 67 N.C. 55; State v. Jackson, 199 N.C. 321, 154 S.E. 402. This assignment of error is not sustained.

In the second assignment of error set out in appellant's brief the defendant contends that the Court erred in its charge in that in defining the offense of 'Assault on female' the crime was not limited to males over age of 18 years, and defendant argues that there is no evidence in the record tending to show the age of the defendant. This exception is without merit for the reason that if there was error committed the error was in defendant's favor, as there is a presumption that the defendant was 18 years of age, and the burden rests upon him to show the contrary. State v Lewis, 224 N.C. 774, 32 S.E.2d...