State v. Jones

• Decision Date: 05 November 1958
• Docket Number: No. 433,433
• Citation: 105 S.E.2d 513,249 N.C. 134
• Parties: STATE, v. Cleveland JONES.
• Court: North Carolina Supreme Court

Page 513

105 S.E.2d 513

249 N.C. 134

STATE, v.Cleveland JONES.

No. 433

Supreme Court of North Carolina.

Nov. 5, 1958

Malcolm B. Seawell, Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for the State.

Ellis Nassif, Raleigh, for defendant, appellant.

BOBBITT, Justice.

The act of 'carnally knowing and abusing any female child under the age of twelve years' is rape.G.S. § 14-21;State v. Monds, 130 N.C. 697, 41 S.E. 789;State v. Johnson, 226 N.C. 671, 40 S.E.2d 113.Neither force, State v. Johnson, supra, nor intent, State v. Gibson, 221 N.C. 252, 20 S.E.2d 51, are elements of this offense.

'The terms 'carnal knowledge' and 'sexual intercourse' are synonymous.There is 'carnal knowledge' or 'sexual intercourse' in a legal sense if there is the slightest penetration of the sexual organ of the female by the sexual organ of the male.It is not necessary that the vagina be entered or that the hymen be ruptured; the entering of the vulva or labia is sufficient.G.S. § 14-23;State v. Monds, 130 N.C. 697, 41 S.E. 789;State v. Hargrave, 65 N.C. 466;State v. Storkey, 63 N.C. 7; Burdick: Law of Crime, section 477;44 Am.Jur., Rape, section 3;52 C.J., Rape sections 23,24.'State v. Bowman, 232 N.C. 374, 61 S.E.2d 107, 108;State v. Reeves, 235 N.C. 427, 70 S.E.2d 9.

The State's evidence was positive as to each and every element of the crime charged in the bill of indictment.

There are sixty-two assignments of error, based on sixty-five exceptions.Only those brought forward in defendant's brief will be discussed.The other assignments, plainly without merit, are deemed abandoned.State v. Gordon, 241 N.C. 356, 362, 85 S.E.2d 322.

Assignments 6 and 7 relate to the court's action in sustaining the State's objections to questions asked by defendant's counsel in his cross-examination of the child's mother.Since the record does not show what this witness would have testified if permitted to answer these questions, State v. Poolos, 241 N.C. 382, 85 S.E.2d 342, there is no need to set forth the reasons why we think these objections were properly sustained.

Assignments 8 and 10, which we consider together, relate to the court's action in overruling defendant's general objections to questions asked two qualified medical experts.

The evidence tends to show tha on June 3rd, six days after the alleged rape, the child was first examined by Dr. McDowell, who sent her to St. Agnes Hospital where she was examined by Dr. Bradby; and that she remained in the hospital for treatment from June 3rd until June 10th.Dr. McDowell, based upon his clinical examination, and Dr. Bradby, based upon his clinical examination and upon laboratory tests, testified that in their opinion the child was suffering from gonorrhea.Dr. McDowell testified that, on the average, it would take from three to five days for the disease to appear after a person had been contacted with gonorrhea.Dr. Bradby testified that in his opinion the child had been penetrated.

It appears further that Dr. Bradby testified, without objection, both on direct and cross-examination, that in his opinion the child had contracted gonorrhea by sexual intercourse.

Defendant's basic contention is that the evidence to the effect that the child was suffering with gonorrhea on June 3rd was incompetent and prejudicial in the absence of evidence tending to show that defendant had gonorrhea.

It was incumbent upon the State to establish the corpus delicti, the fact that a crime of the character charged had been committed.State v. Cope, 240 N.C. 244, 81 S.E.2d 773.Moreover, the State was required to offer evidence sufficient to establish this fact beyond a reasonable doubt.The doctors' testimony, to which objection was made, was admissible as tending to corroborate the testimony of the child as to the fact that a male person had carnally known and abused her.Malone v. State, 37 Ala.App. 432, 71 So.2d 99.In State v. Edwards, 224 N.C. 577, 31 S.E.2d 762, 763, this Court quoted with approval, and applied to the case before it, this statement from 22 C.J.S.Criminal Law § 567: 'The prosecution has the burden of proving the corpus delicti, that is, a crime has been committed, before the jury may proceed to inquire as to who committed it.'

It is not a 'ground of 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.'Rule 21, Rules of Practice in the Supreme Court, 221 N.C. 544, 558;State v. Sutton, 225 N.C. 332, 336, 34 S.E.2d 195, and cases cited.Here, defendant made no request that the doctors' testimony be restricted to corroboration of the child in respect of the corpus delicti.

The only contention made by defendant in support of assignments 17, 53 and 54 is that the court erred in instructing the jury that it could return one of only three possible verdicts: (1) guilty of rape, (2) guilty of rape with recommendation that the punishment be imprisonment in the State's Prison for life and (3) not guilty.Defendant's contention calls for consideration of G.S. § 15-169andG.S. § 15-170, the provisions of which are set out below.

G.S. § 15-169.'Conviction of assault, when included in charge.--On the trial of any person for rape, or any felony whatsoever, when the crime charged includes an assault against the person, it is lawful for the jury to acquit of the felony and to find a verdict of guilty of assault against the person indicted, if the evidence warrants such finding; and when such verdict is found the court shall have power to imprison the person so found guilty of an assault, for any term now allowed by law in cases of conviction when the indictment was originally for the assault of a like character.'(Our italics.)

G.S. § 15-170.'Conviction for a less degree or an attempt.--Upon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime.'

An indictment for rape, as G.S. § 15-169 declares, includes an assault against the person; and where there is evidence sufficient to warrant such finding, the jury may acquit of the felony of rape and return a verdict of guilty of a lesser criminal assault.

Thus, in State v. Williams, 185 N.C. 685, 116 S.E. 736, where the indictment was for rape, the State's evidence tended to show rape accomplished by defendant's use of a pistol or gun.However, the defendant's evidence was that the admitted act of sexual intercourse was by consent, that he neither used nor had a pistol or gun, and that he used no force of any kind.On account of defendant's said evidence, it was held that the court erred in refusing to give in substance the defendant's special request that the jury be instructed to the effect that they could return any one of five possible verdicts, viz.: (1) guilty of rape, (2) guilty of assault with intent to commit rape, (3) guilty of assault with a deadly weapon, (4) guilty of assault upon a female, the...