State v. Johnson

• Decision Date: 17 April 1946
• Docket Number: 435
• Parties: STATE v. JOHNSON et al.
• Court: North Carolina Supreme Court

37 S.E.2d 678

226 N.C. 266

STATE v. JOHNSON et al.

No. 435

Supreme Court of North Carolina

April 17, 1946

Criminal prosecution upon the following bill of indictment:

'The jurors for the State upon their oath present, that Charles Primus, Jr., and Wilbert Johnson, male persons over 18 years of age, late of the County of Wake, on the 19th day of July in the year of our Lord one thousand nine hundred and forty five, with force and arms, at and in the county aforesaid not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil, in and upon one Virginia Lipscomb, a female, in the peace of God and the State then and there being, unlawfully, wilfully, violently and feloniously did make an assault and her the said Virginia Lipscomb then and there violently 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.'

Verdict as to each defendant: 'Guilty of rape as in the bill of indictment charged.'

Judgment as to each defendant: Death by inhalation of lethal gas administered in the manner provided by law.

Defendants appeal therefrom to Supreme Court and assign error.

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

A. B. Breece, of Raleigh, for defendants appellants.

WINBORNE Justice.

Pending hearing on appeal taken, as above stated, defendants filed originally in this Court motion in arrest of judgment upon the ground that the bill of indictment is insufficient to support a judgment of death in that it fails to charge that the offense, alleged to have been committed on the female person named, was done 'forcibly' and 'against her will.'

In the light of the language of the statute, G.S. s 14-21, pertaining to punishment for rape, as construed in several decisions of this Court, particularly State v. Marsh, 132 N.C. 1000, 43 S.E. 828, 67 L.R.A. 179, where the authorities are assembled, the bill of indictment here is insufficient and fatally defective. Hence, the motion in arrest of judgment is well taken.

The statute, G.S. s 4-21, provides that: 'Every person who is convicted of ravishing and carnally knowing any female of the age of twelve years or more by force and against her will, or who is convicted of unlawfully and carnally knowing and abusing any female child under the age of twelve years, shall suffer death.'

Under the first clause of this statute, relating to the ravishing and carnally knowing of a female person who is of the age of twelve years or more, the elements of force and lack of consent must be alleged and proven before a conviction may be had on which death sentence may be imposed. Allegation is as necessary as proof. In the absence of either, death sentence may not be imposed.

On the other hand, under the second clause of the statute relating to unlawfully and carnally knowing and abusing any female child under the age of twelve years, neither force nor lack of consent need be alleged or proven, and such child is by virtue of the statute presumed incapable of consenting.

Moreover in State v. Marsh, s...