State v. Kiziah

• Decision Date: 10 April 1940
• Docket Number: 289.
• Citation: 8 S.E.2d 474,217 N.C. 399
• Parties: STATE v. KIZIAH et al.
• Court: North Carolina Supreme Court

8 S.E.2d 474

217 N.C. 399

STATE v. KIZIAH et al.

No. 289.

Supreme Court of North Carolina

April 10, 1940

The defendants were indicted on a bill of indictment charging them with rape on one Elizabeth Holman. The records shows "The Solicitor for the State in open court announced that he would not ask for a verdict of guilty of the capital offense of rape, but would ask for a verdict of guilty of an assault with intent to commit rape." The jury returned for their verdict as to both defendants "Guilty of assault upon a female". C.S. § 4215. The judgment of the Court below as to both was: "That the defendants be confined in the common jail of Caldwell County for the term of 18 months and assigned to work upon the roads under the control and supervision of the State Highway and Public Works Commission."

The evidence on the part of the State tended to show that the prosecuting witness, Elizabeth Holman, was a female 17 years of age. That she had never had intercourse with any man. That the defendants were married men--Ransom Kiziah had a wife and two children, and Troy Kiziah a wife and four children. That on Sunday evening, about 1:30, while on her way to Lenoir to get some ice cream for her sister, Elizabeth Holman met defendant Ransom Kiziah and his brother Troy Kiziah. She had come home the night before with Ransom Kiziah, who called himself Herman and said he was unmarried. Ransom Kiziah asked her if she wanted to ride around, but she declined, but agreed to ride if she was let out in town. She got in the car, a four-door Ford Sedan, got in the back seat and Ransom got in beside her. Troy was in the front seat and drove the car. When they got down to the forks of the road to go to Lenoir, they turned away on Zack's Forks Road. They went on up the road and she began crying and begging them to let her out. She continued to cry and Ransom put his hand over her mouth. They went about eight miles and stopped on the side of the road. Ransom asked her "Have you ever had intercourse with anyone", and she said "No, I am not going to", and he said "You will too." They drove up in the woods and she was crying and hollering and trying to get out. Troy held her and Ransom had intercourse with her. They had a knife and threatened to kill her and when Ransom got through he held her and Troy had intercourse with her.

The prosecuting witness proved a good reputation and was corroborated in many respects.

The defendant Ransom Kiziah at first denied the charge. He afterwards set up the defense that the intercourse was by consent and in fact Troy Kiziah denied he had intercourse. Upon the conviction of both of an assault upon a female and judgment pronounced, the defendants made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion.

Harry McMullan, Atty. Gen., and T. W. Bruton and G. B. Patton Asst. Attys. Gen., for the State.

Pritchett & Strickland, of Lenoir, for defendants.

CLARKSON Justice.

There was no request made by defendants for nonsuit in accordance with N.C. Code 1935 (Michie), Sec. 4643 (same as 567 in civil actions). The evidence was sufficient to be submitted to the jury on all aspects of the crime. The defendants waived their right to maintain the insufficiency of the evidence to take the case to the jury by not making a motion as of nonsuit thereon at the close of the evidence. Gibbs v. Telegraph Co., 196 N.C. 516, 146 S.E. 209; Murphy v. Power Co., 196 N.C., 484, 494, 146 S.E. 204. Where the defendant does not move for nonsuit as provided by Sec. 567 (4643) in criminal actions, in the lower court he waives his right to have the insufficiency of the evidence to be submitted to the jury considered on appeal. Lee v Penland, 200 N.C. 340, 157 S.E. 31; Debnam v Rouse, 201 N.C. 459, 160 S.E. 471; Harrison v. Metropolitan Life Ins. Co., 207 N.C. 487, 177 S.E. 423.

Section 4639 is as follows: "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."

Section. 4640: "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."

The defendants contend: "1. That there was error in the ruling of the court below in permitting the testimony of Mrs. S. Cline as to the good character of the prosecuting witness, Elizabeth Holman, her mother and her father, after she had said she did not know their general reputation." This contention cannot be sustained. The record is not exactly in accord with the defendants' contentions. The record is as follows:

Mrs. S. Cline, witness for the State, testified:

"I know C. H. Holman. I have known him for over a year. I have known Mrs. Holman for about the same time. I know Elizabeth Holman. She work for me about one year. She worked from last June or July until about April of this year. I don't know her general reputation.

"Q. Do you know the general character and reputation of Mrs. Holman in that community? A. I have just heard people say that they were nice.

"Q. Do you know the general reputation of Mr. C. H. Holman? A. I don't hardly know what to say, because I have not been out much and I have not heard anybody say much and that is all I know. (Defendants object--overruled--exception)-- (Cross-examination) I don't know where the Holman family live. I have not heard any body talk about Mr. Holman. The opinion I give is just my own personal opinion. If there was anything bad I would have known it.

"Q. From what you have heard of Mrs. C. H. Holman and the reputation of Elizabeth for that length of time, do you think that you can or cannot say as to her general reputation? A. Yes, it is good. I don't know where the Holman family live. I have not heard any body talk about Mr. Holman. The opinion I give is just my own personal opinion. If there was anything I would have known it. (Defendants object and move to strike from record-- Motion denied and defendants except.) I had not heard anyone speak about Elizabeth Holman. She worked for me. I have not heard anyone say anything about the other members of the family. The girl was recommended to me. My mother knew her mother and suggested that I hire Mr. Holman's daughter. I did and when she came I found out she was a nice girl. We had never heard anything but what she was a real good girl. That is the basis of my testimony here today."

Mrs. R. L. Holloway, witness for the State, testified that she knew C. H. Holman and Mrs. Holman; had known them for thirty or thirty-five years. That she knew Elizabeth and Edith; that all of them had good reputations. (Cross-examination): "Sometimes I see the Holmans every day. I just see the young ladies as they pass the road. I do not visit in their home. The young ladies have never been to my house. The general report is that their character is good. I can't recall right now any person that I heard say anything about their character. I have heard nothing said for the last two months concerning their character. I just said I haven't heard anything bad. Their character is good as far as I know. I haven't heard anything bad. People speak well of them. I cannot recall when I last heard them discussed."

Mrs. Etta Powell, witness for the State, testified: "I know Carl Holman. I live about a half mile from him. I know his wife and two daughters. I have known Carl 35 or 40 years and his character is good. General reputation of Elizabeth and Edith is good. (Cross-examination): I haven't visited in their home lately. It has been four or five years, since I was there. The young ladies do not visit in my home. I have not heard anybody say anything about their character. My statement is based upon my opinion. I don't know what the people in the community at large say about them."

Sylvester St. John, witness for the State, testified: "I know Carl Holman; his wife and his two daughters. I have known Carl 20 or 25 years and his wife about 10 years. Their general reputation is good. General reputation of the two daughters is good. (Cross examination) I haven't heard anybody talk about their general reputation at all. The opinion that I give is my belief because I think I know them."

T. L. Holder, witness for the State, testified: "I know Mr. and Mrs. Holman and the girls. Mr. Holman has a good reputation; so has Mrs. Holman and the two girls.

I make this statement from my own personal knowledge and experience with them. I do not know their general reputation in the community in which they live." The matter of general character was thoroughly discussed in State v. Steen, 185 N.C. 768, 770, 117 S.E. 793.

The decisions in this State have consistently held that reputation is the general opinion, good or bad, held of a person by those of the community in which he or she resides. This is eminently a matter of hearsay based upon what the witness has heard or learned, not as to any particular acts, but as to the general opinion or standing in the community.

After a character witness is once qualified, he or she may be cross-examined as to the source of his or her knowledge, but the answers go to the credibility of the witness rather than to the competency. State v. Holly, 155 N.C. 485, 71...