State v. Johnson

• Decision Date: 26 March 1888
• Citation: 100 N.C. 494,6 S.E. 61
• Court: North Carolina Supreme Court
• Parties: State v. Johnson.

6 S.E. 61

(100 N.C. 494)

State

v.Johnson.

Supreme Court of North Carolina.

March 26, 1888.

Rape—Child under Ten—Consent—Indictment.

On a trial for rape, an instruction that, if the accused had unlawful carnal knowledge of the prosecutrix when she was under 10 years of age, he is guilty whether she consented or not, is erroneous where the indictment charged that the act was committed "forcibly and against her will. "

Appeal from superior court, Edgecombe county; Avert, Judge.

Indictment of Van Johnson for rape. Defendant was convicted, and appeals.

J. L. Bridgets, for appellant.

The Attorney General, for the State.

Smith, C. J. The prisoner is charged with committing a rape upon the person of Dilsey Ann Hyman, and after his arraignment, and pleading not guilty, was tried and convicted by the jury at fall term, 1887, of the superior court of Edgecombe. The form of the indictment is as follows:

"State of North Carolina, Edgecombe County—Superior Court, Fall Term, 1887: The jurors for the state, upon their oath, present, that Van Johnson, late of the county of Edgecombe, on the 5th day of March, Anno Domini 1887, at and in the county aforesaid, with force and arms, in and upon one Dilsey Ann Hyman, in the peace of God and the state of North Carolina, then and therebeing, violently and feloniously did make an assault, and her, the said Dilsey Ann Hyman, then and there violently, forcibly, and against her will, feloniously did ravish, and carnally know, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state.

"Geo. H. White, Solicitor."

It is unnecessary to enter into a consideration of the exception to the method of proving the character of the prisoner which was put in issue by his own voluntary act in becoming a witness in his own behalf, (State v. Efler, 85 N. C. 585,) and we pass it by with the single remark that, in our opinion, it is without force, and proceed to an examination of the portion of the charge complained of after verdict, and on the motion for a new trial. It is as follows: "(1) If the prisoner at the bar unlawfully and carnally knew Dilsey Ann Hyman, forcibly and against her will, at any time before the finding of the bill of indictment, he is guilty; (2) if the prisoner at the bar had unlawful carnal knowledge of and abused Dilsey Ann Hyman, she being at the time a child under ten years of age, the prisoner is guilty whether she consented or not." As abstract propositions of law, the charge is not open to objection, for rape may be committed upon a female of any age, as well when she is...