State v. Kiziah, 289.

• Decision Date: 10 April 1940
• Docket Number: No. 289.,289.
• Parties: STATE. v. KIZIAH et al.
• Court: North Carolina Supreme Court

8 S.E.2d 474
217 N.C. 390

STATE.
v.
KIZIAH et al.

No. 289.

Supreme Court of North Carolina.

April 10, 1940.

Appeal from Superior Court, Caldwell County; Wm. H. Bobbin, Judge.

[8 S.E.2d 475]

Ransom Kiziah and Troy Kiziah were convicted of assault upon a female, and they appeal.

No error.

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

[8 S.E.2d 476]

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...