State v. Lewis
| Decision Date | 26 February 1919 |
| Docket Number | (No. 90.) |
| Citation | 98 S.E. 309 |
| Court | North Carolina Supreme Court |
| Parties | STATE . v. LEWIS. |
Appeal from Superior Court, Wayne County; Daniels, Judge.
Jim Lewis was convicted of rape, and appeals. No error.
The prisoner was charged with rape, committed on the person of Mrs. Sarah King, on January 17, 1918. The prosecutrix testified that she was alone in the field picking cotton, about 5 o'clock in the afternoon, when the defendant approached her from the negro cemetery and asked her what she received for picking cotton, and, then, if the butcher wagon had passed by. He walked along the cotton row behind her, and, when she reached the end of the row, he seized her and threw her down to the ground, and had connection with her, by force and against her will. She cried out, and he choked her. When he left, after being there a half hour, he went towards the branch. She met Mr. Jones on her way to her home and told him about it, and he went back with her to the place. She described minutely how the prisoner was dressed at the time, and stated that he had a gap in his teeth. She identified the prisoner as the man who assaulted her in the field, and expressed herself as being positive and sure that he is the man. She was corroborated by Mr. Jones, who testified that he went to the field with Mrs. King and saw the place where, as she alleged, the act was committed, and it appeared as though there had been a struggle there. He further stated that there were bruises on Mrs. King's throat, and she was crying when he met her in the road. He accompanied her to her home and reported the facts to Mr. Fulghum, the constable, who also went to the place where Mrs. King was assaulted, and testified that there were indications of a straggle on the ground; that he went to the prisoner's home and found him in bed, and he said that he was sick, and was sick and in bed on January 17, 1918, and had been sick ever since.
The defendant's witnesses testified that the prisoner was sick and in bed on January 17, 1918, and for a week before and for a week after that day.
The state, in rebuttal, offered evidence tending to show that the prisoner had been seen by them, not in Goldsboro, where he was found by the constable, when he said that he was sick, and was then in bed, but in the country some two or three miles from Goldsboro, within the week before and the week after January 17, 1918, and that he had chased Mrs. Loftin, and tried to grab her, and returned three nights afterwards and peeped in the window of her house. This evidence was admitted over the prisoner's objection, but was confined by the court strictly to its effect as contradicting the prisoner's declarations, and the testimony of his witnesses as to his whereabouts at the time mentioned, though there was evidence that he ran when he saw one of the witnesses a few days after the alleged assault. None of this evidence was permitted to be used as substantive, but only as tending to contradict the defendant's witnesses and his own statements.
A special venire of 40 jurors was ordered by the court, but the writ was not drawn out in writing and delivered to the sheriff at the time. When the case was again called for trial, only 22 of this panel answered to their names, and 5 of these were excused, leaving 17 for service. This number was exhausted, and another order made for 20 special jurors', and there was a third order made for 10 jurors, and the sheriff summoned the members of a jury, which had just rendered their verdict in another case, and were dismissed until a later day in the term. A jury was finally selected, without the prisoner having exhausted his peremptory challenges, he having made use of only nine of them. When it was discovered that no formal writ had been issued for the 40 jurors, the court, on motion, ordered the writ to issue nunc pro tunc, and the sheriff to make his return thereon, which was done, he stating that he could only find 22 of the 40 summoned after proper search for them. These proceedings of the court were all duly and severally objected to by the prisoner, and his objections were overruled, and they are now assigned as error. He was convicted, sentenced to death, and appealed.
W. F. Taylor and J. Faison Thomson, both of Goldsboro, for appellant.
James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.
WALKER, J. (after stating the facts as above). [1, 2] We have no doubt as to the power of the court to amend its record, by inserting the order for the summoning of the special venire, and the issuing of the writ to the sheriff, and the entering of his return upon the process nunc pro tunc. The order for these amendments, and the correction of what was overlooked by the officers, that is, the clerk and the sheriff, related back to thetime when the order or writ should have been issued by the clerk, and the return made thereon by the sheriff. When the court has the power, we do not review its exercise, as it is within the discretion of the court to decide whether it will exercise it or not. There are a vast number of authorities for this position, and there is nothing better settled by our cases than this rule. Phillipse v. Higdon, 44 N. C. 381; Clark v. Hellen, 23 N. C. 421 (approved in Henderson v. Graham, 84 N. C. 496); Sea well v. Bank, 14 N. C. 279, 22 Am. Dec. 722; Cheatham v. Crews, 81 N. C. 343; State v. Cauble, 70 N. C. 62; Bullard v. Johnson, 65 N. C. 436; Williams v. Weaver, 101 N. C. 1, 7 S. E. 565; Luttrell v. Martin, 112 N. C. 593, 17 S. E. 573; Grady v. Kail-road Co., 116 N. C. 952, 21 S. E. 304. There are many other cases more or less analogous to this one.
In State v. Cauble, supra, this court held that the superior court had the power to amend the warrant by striking out the name of the prosecutor, as plaintiff, it then having the form of a civil action, and inserting the name of the state, Justice Bynum...
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