State v. Lance
| Decision Date | 01 June 1914 |
| Docket Number | 545. |
| Citation | 81 S.E. 1092,166 N.C. 411 |
| Parties | STATE v. LANCE. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Henderson County; Cline, Judge.
Ert Lance was convicted of rape, and he appeals. Affirmed.
Though the statute permits the jury, on a trial for rape, to convict accused of an assault, the jury need not find accused guilty of the lesser offense, where there is full evidence of his guilt of rape.
O. V F. Blythe and W. C. Rector, both of Hendersonville, for appellant.
The Attorney General and Assistant Attorney General T. H Calvert, for the State.
Exception 1 cannot be sustained. Statements made to an officer are not incompetent merely because the defendant is at the time in custody or in jail, when they are made without threat or inducement. State v. Jones, 145 N.C. 466, 59 S.E 353; State v. Bohanon, 142 N.C. 695, 55 S.E. 797; State v. Horner, 139 N.C. 603, 52 S.E. 136, 4 Ann Cas. 841; State v. Exum, 138 N.C. 600, 50 S.E. 283.
Exception 2. It was not error for the court to refuse to recite a long statement of contentions prepared by prisoner's counsel, when the court stated fully the contentions which were supported by the testimony. If the court had failed to state any particular contention supported by evidence, counsel should have called it to the attention of the court, but it was not called on to repeat the argument of counsel for the prisoner in the particular manner and with the references which his counsel desired. Counsel could do that in his speech.
Exception 3. The prisoner requested the court to charge:
The case states that the charge as asked "was given, except that the third and fourth were omitted, and instruction touching assault on a woman by a man or boy above the age of 18 years was substituted." Laws 1911, c. 193, enacts that assault by a man or boy over 18 upon a woman shall be added to the proviso in Revisal, § 3620. This makes the punishment in such cases greater than other simple assaults, and, as the prisoner testified that he was 22 years of age, the substitution was proper. The court therefore instructed the jury that they could return a verdict of rape, or of assault with intent to commit rape, or of assault by a man over 18 years of age upon a woman (which is a simple assault), or of not guilty.
The omission to charge that the prisoner could be convicted of an assault with a deadly weapon cannot be complained of by him, for there was no testimony of such assault. He testified that he did not make any assault with a deadly weapon, and the prosecutrix did not testify to the contrary. Both said he laid the gun down.
The jury refused to find the prisoner not guilty, and also refused to find him guilty of the simple assault upon a woman, or of the assault with intent to commit rape, but guilty of the capital felony. It could not be prejudicial that their attention was not called to the prayer that they might find him guilty of an assault with a deadly weapon, when there had been no evidence of such assault. The prayer was defective, and in such case the court can disregard it altogether.
That part of the charge presented in exception 6 is supported by 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; and State v. Hodges, 61 N.C. 231.
Exceptions 7, 8, and 9, as to the instructions as to the testimony of the prisoner himself and of his relatives, testifying in his behalf, cannot be sustained, as the charge was in accordance with State v. Fogleman, 164 N.C. 461, 79 S.E. 879; State v. Byers, 100 N.C. 512, 6 S.E. 420, and cases cited. The court told the jury that, notwithstanding the personal interest of the defendant and of his relatives, they could consider their testimony, and, if they "believed them to be credible witnesses, they should give to their testimony the same weight as that of other witnesses."
The court also charged the jury:
etc.
The exception of the prisoner to this charge is also without merit. It was proper that the jury should consider the charge in the indictment, and, if they failed to find the prisoner guilty as therein charged, then to pass on the lesser degree of the same offense. Revisal, § 3268.
The prisoner, a negro man 22 years old, of unusually strong and lusty frame, according to his own evidence, is indicted for rape upon a white woman, Mrs. Caroline Crook, a widow 42 years old. Her husband died 2 years ago, leaving her four children to support, and she, having lost by her necessities the little home which her husband left her, had moved to a rented place at a retired and unprotected spot, doing doubtless the best she could. She testified that she had a considerable struggle to keep the rent on it paid. She gave a straight and pitiful story of this negro man's coming to her place, making improper proposals, and of being refused, assaulting her, running her little girl out of the house, throwing her down, beating her, and committing the rape. No one lived in sight of the house, and there is no public road. There was much corroboration of her evidence.
John Gildon testified that when they got to the house Mrs. Crook came up from under the floor with blood on her hair, face, and bosom. We need not go through all the repulsive and shocking testimony, for certainly this condition of the woman, of which she still showed pitiful signs on her face and bosom at the trial, did not tend in any way to show that she had ever been willing to the embraces of the negro man, as he testified.
It is true the statute permits that, under an indictment for murder or rape, the prisoner can be convicted of an assault, but that is permission to the jury to avoid the necessity of a new trial for the lesser offense. It does not require the jury to find the defendant guilty of the lesser offense when there is full evidence to satisfy them, as it did satisfy them in this case, beyond all reasonable doubt, that the prisoner was guilty of the rape charged. She was a poor widow deprived of the protection of her husband and of the little home left her, endeavoring to support her children, and forced to live in this unprotected spot, a distance from the public road, and therefore at the mercy of this negro man animated with such impulses as the jury have found. There was evidence that the character of Mrs. Crook and of all her witnesses was good, and there is not a syllable of evidence as to her bad character, save only from the prisoner himself. There was evidence that he was a man of bad character, and he admitted that he had served sentences for perjury and other offenses.
It has been repeatedly held that the judge, upon a proper state of facts, can tell the jury that, if they believe the evidence, they can find the prisoner guilty of murder or nothing. It would have been no error to have so charged on this occasion.
If the testimony of the woman was believed, corroborated as to many points by witnesses who proved a good character, he was guilty of a most brutal and shocking rape upon an unprotected white woman. His testimony that she had consented to his embraces was wholly unsupported. Her bloody and bruised condition when the neighbors came up, her being found under the floor, her own testimony, the natural repugnance of a decent white woman to such intercourse naturally outweighed with the jury the unsupported and most improbable testimony of the prisoner. There could have been no prejudice accrue to the prisoner in not charging that the jury could convict of assault with a deadly weapon, for there was no testimony from her that he had assaulted her with the gun, and the prisoner testified that he did not assault her at all, but that she hurt herself by falling against a chair. There can be no error in not charging that they could convict him of simple assault, because, under the law as it now stands (Laws 1911 c. 193), there can be no simple assault in such a case as this, because, when there is an assault by a man or a boy over 18 years old upon a woman, it is a different offense, and punishable like an assault with a deadly weapon, and the judge charged exactly as the statute required. She proved by herself and corroborating witnesses that he was guilty of the highest crime--that of rape. If there had been any...
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