State v. Jackson

• Decision Date: 20 August 1930
• Docket Number: 505.
• Citation: 154 S.E. 402,199 N.C. 321
• Parties: STATE v. JACKSON.
• Court: North Carolina Supreme Court

154 S.E. 402

199 N.C. 321

STATE v. JACKSON.

No. 505.

Supreme Court of North Carolina

August 20, 1930

Appeal from Superior Court, Rowan County; Stack, Judge.

Huzy Jackson, alias Jimmy Cadoger, alias Jimmy Cadozier, was convicted of rape, and he appeals.

Remanded with directions.

No error in the trial; remanded for judgment on the verdict, in accordance with the provisions of C. S. § 4659.

This is a criminal action in which the defendant was tried on his plea of not guilty to an indictment returned by the grand jurors for the state, at September term, 1929, of the superior court of Rowan county, charging that defendant "on the 27th day of July, A. D. 1929, with force and arms, in the county aforesaid, in and upon Mrs. W. H. Canup in the peace of God and the State, then and there being violently and feloniously, did make an assault, and her the said Mrs. W. H. Canup, then and there violently and against her will, feloniously did ravish and carnally know, against the form of the statute in such case made and provided, and against the peace and dignity of the State."

There is a count in the indictment also charging that defendant, on said day, and in said county, "in and upon the said Mrs W. H. Canup, a female in the peace of God and the State, then and there being, unlawfully, violently and feloniously did make an assault with intent to commit rape upon the body of her, the said Mrs. W. H. Canup, and with intent her, the said Mrs. W. H. Canup, violently by force and against her will, then and there, feloniously to ravish and carnally know, against the form of the statute in such case made and provided, and against the peace and dignity of the State."

There was a verdict that defendant is guilty of rape.

From judgment that defendant suffer death by means of electrocution, as provided by statute, C. S. § 4657, defendant appealed to the Supreme Court, assigning errors in the trial, and also error in the judgment.

T. L. Kirkpatrick, and B. G. Watkins, both of Charlotte, for appellant.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

CONNOR J.

There was evidence at the trial of this action, offered by the state and submitted to the jury by the court, without objection by the defendant, sufficient in its probative force to sustain the verdict that defendant is guilty of rape, as charged in the indictment. This evidence was sufficient to show, not only that the crime of rape was committed as alleged in the indictment, but also that the defendant is the man who committed the crime, as is also alleged therein.

The evidence offered by the defendant, and also submitted to the jury by the court, tending to show that defendant is not the man who committed the crime of rape, which all the evidence tended to show was committed as alleged in the indictment, was sufficient in its probative force to sustain the contention of the defendant that he is not guilty. This evidence tended to contradict the testimony of the prosecutrix, identifying the defendant as the man who committed the crime, and also tended to show that defendant, at the time the crime was committed, was not present, but was elsewhere. There was evidence tending to corroborate both the prosecutrix as a witness for the state, and the defendant as a witness in his own behalf.

The credibility of the conflicting testimony as to the identity of the defendant as the man who committed the crime was essentially a matter for the jury. In her testimony at the trial, the prosecutrix positively and without equivocation identified the defendant as her assailant. On the other hand, the defendant testified that at the time the state contended the crime was committed, he was at a place some five or six miles from the scene of the crime. If the jury found the facts to be as the evidence for the state tended to show, and so found beyond a reasonable doubt, as their verdict shows they did, the only verdict which they could have returned was that defendant is guilty of rape. If, however, the jury had accepted the testimony of the defendant as true, or if the jury, upon consideration of all the evidence, had had a reasonable doubt as to the identity of defendant as the man who committed the crime, they should, and under the charge of the court they would have returned a verdict of not guilty. In its charge to the jury, the court fully and correctly instructed them in accordance with these principles.

Defendant's objections to certain evidence, offered by the state for the purpose of corroborating the prosecutrix as a witness for the state, were properly overruled. At the time this evidence was admitted, the court instructed the jury that the evidence was not substantive evidence, but was offered only for the purpose of corroborating the testimony of the prosecutrix, and should be considered by the jury only for that purpose. In the absence of a prayer that the court instruct the jury, in its charge, that this evidence was only for the purpose of corroborating the prosecutrix, and should not be considered by the jury as substantive evidence tending to prove the facts involved in the issue to be as contended by the state, there was no error in the failure of the court to so instruct the jury in its charge. The rule to the contrary in accordance with which a new trial was ordered in State v. Parker, 134 N.C. 209, 46 S.E. 511, has been superseded by rule 21, Rules of Practice in the Supreme Court of North Carolina, 192 N.C. at page 849. The rule now is that: "When testimony is admitted, not as substantive evidence, but in corroboration or contradiction, and that fact is stated by the Court when it is admitted, it will not be ground for exception that the Judge failed in his charge to again instruct the jury specially upon the nature of such evidence, unless his attention is called to the matter by a prayer for instruction; nor will it be ground for exception that evidence competent for some purposes but not for all, is admitted generally, unless the appellant asks, at the time of admission that its purpose shall be restricted."

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. C. S. § 4639 and C. S. § 4640 are applicable only where there is evidence tending to show that defendant is guilty of a crime of lesser degree than that charged in the indictment. See State v. Hardee, 192 N.C. 533, 135 S.E. 345; State v. Holt, 192 N.C. 490, 135 S.E. 324; State v. Allen, 186 N.C. 302, 119 S.E. 504.

The contention of the defendant that by the use of the words "tends to show," in referring to the evidence offered by the state, in his charge to the jury, the trial judge violated the provisions of C. S. § 564, cannot be sustained. The judge used the identical words in referring to the evidence offered by the defendant. He did not thereby give an opinion either as to the credibility or as to the probative force of the conflicting evidence, which he was stating to the jury as he was required to do by the statute. In his charge to the jury in Lewis v. R. R., 132 N.C. 382, 43 S.E. 919, 921, the judge, referring to the substance of the testimony of certain witnesses, used the expressions, "the evidence tends to show," and "evidence tending to show." On defendant's appeal to this court, it was contended that this was error. The contention was not sustained. In the opinion in that case, it is said: "We see no valid objection to the expressions complained of. Th...