State v. Johnson

• Decision Date: 30 June 1872
• Citation: 67 N.C. 55
• Court: North Carolina Supreme Court
• Parties: STATE v. THOMAS JOHNSON

67 N.C. 55

STATE

v.THOMAS JOHNSON

Supreme Court of North Carolina.

June Term, 1872.

An indictment for rape, charging that the assault was violent and felonious, and that the ravishing was felonious and against the will of the prosecutrix, is sufficient.

The name of a person ravished was charged in the indictment as Susan, while her real name was Susannah, though she was generally called Susan; Held to be no ground of objection.

Evidence of the name of a prisoner as given by him when brought before the examining magistrate is admissible, though it do not appear whether the examination was reduced to writing or not.

Upon a criminal trial, it is proper to ask a witness to look around the Court room and point out the person who committed the offence.

Where the record shows that, after the jury returned a verdict of guilty in a capital trial, the prisoner moved for a new trial, &c., it was not absolutely essential that the Judge, before pronouncing sentence, should ask the prisoner, in the usual formula, whether he had anything to say why sentence of death should not be pronounced against him.

[ State v. Jacocks, 5 Jon, 259, cited and approved.]

RAPE tried before Cloud, J., at Spring Term, 1872, of the Superior Court of DAVIDSON.

The indictment charged that the prisoner, a colored man, “on the 16th day of September, 1871, with force and arms, at and in the county aforesaid, in and upon one Susan Thompson, in the peace of God and the State then and there being, violently and feloniously did make an assault, and her, the said Susan Thompson, against the will of her, the said Susan Thompson, then and there feloniously did ravish and carnally know,” &c.

The evidence was that Susannah was the christian name of the prosecutrix, though she was called Susan and Susy, but mostly Susan. A witness stated, in reply to a question by the Solicitor, that the prisoner when brought before the examining magistrate was asked his name, and gave it as Thomas Johnson. There was no evidence that the examination before the Justice was not reduced to writing, and the prisoner's counsel objected to the evidence.

The prisoner was seated within the bar, on a bench used as a prisoner's dock. The prosecutrix, on her examination, was asked to look around the room and see if she could point out the man who committed the rape upon her. She did so and pointed to the prisoner, saying, “That is the black rascal.” This evidence was objected to.

The jury returned a verdict of guilty. A motion for a new trial was made and the rule discharged. His Honor thereupon proceeded to pronounce sentence upon him, without asking whether he had anything further to say, why sentence of death should not be pronounced against him.

The prisoner appealed.

Attorney General, Battle & Son., and Dupre, for the State .

Bailey, for the defendant .

READE, J.

In the argument here, there were several objections taken to the sufficiency of the record, which have been obviated by the return of a more perfect record upon certiorari. There still remains to be considered the following objections, made by the prisoner:

1. The indictment does not charge that the prisoner did forcibly and felonionsly ravish; but only that he did “feloniously ravish,” omitting the word forcibly.

There is no doubt that the indictment must charge the act to be done forcibly; although that particular word need not be used. Any equivalent word will answer--especially since our statute, which forbids the staying of judgment or proceedings in criminal cases, on account of any “informality or refinement, if, in the bill, sufficient appear to enable the Court to proceed to judgment.” Rev. Code ch. 35, sec. 14. It is always best, however, to observe established forms; and any unnecessary departure, or experiment, is decidedly reprehensible. It makes the administration of justice uncertain, tedious and expensive. The indictment does charge that the assault was “violent,” but this is not repeated, when it comes to charge the act of ravishing. And the authorities are, that, although ravishing would seem to imply force, yet it is necessary to charge force expressly, in some appropriate language. In our case the indictment charges, that the assault was violent and felonious, and that the ravishing was felonious and, “ against her will.” This is sufficient under our statute, supra.

2. The indictment charges the name of the woman ravished as, “Susan.” The evidence was that her name was, “Susannah,” but that she was called indifferently, Susan, Susy, but most people called her Susan.” There is no force in this objection. It would seem that Susan was the name by which she was generally known. At any rate, idem sonans.

3. Declarations which the prisoner made as to his name, Thomas Johnson, when he was before the magistrate, not in writing.

This objection is taken upon the ground that it does not appear that the examination was not in writing, and that it is to be presumed that it was, and, therefore, the writing would be the better evidence. A sufficient answer is, that it does not appear that his declarations were a part of his examination at all. They are to be taken, therefore, as outside of his exa??ination, and as being voluntary.

4. The prosecutrix was asked by the Solicitor to look around the court room and...