State v. Mansell

• Decision Date: 27 May 1926
• Docket Number: 547.
• Citation: 133 S.E. 190,192 N.C. 20
• Parties: STATE v. MANSELL.
• Court: North Carolina Supreme Court

133 S.E. 190

192 N.C. 20

STATE v. MANSELL.

No. 547.

Supreme Court of North Carolina

May 27, 1926

Appeal from Superior Court, Buncombe County; Stack, Judge.

Alvin Mansell was convicted for rape and sentenced to death by means of electrocution, as provided by statute, and he appeals. No error.

Evidence of identity of man accused of rape held for jury.

A. Hall Johnston, of Asheville, for appellant.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen for the State.

CONNOR J.

There are no exceptions to the evidence, offered by the state, to sustain its contention that the crime was committed as alleged in the indictment. There was evidence that the prosecutrix had been married about seven years, and lived with her husband, near the city of Asheville; that she had been the mother of four children, all of whom are dead; that she is not strong physically. Many witnesses testified that they had known her for many years, and that they knew her general character; that it was good. There was no evidence or contention to the contrary. Her testimony as to the time and place of the assault, and both as to the purpose of her assailant, and as to the result accomplished by him, was fully corroborated by many facts and circumstances, with respect to which there was no controversy on behalf of defendant.

There are no exceptions to the instructions of his honor, in his charge to the jury, as to the law applicable to the evidence tending to show that the prosecutrix was the victim of the crime for which defendant was on trial. These instructions are clear, full, and accurate. It is manifest that his honor felt keenly the grave responsibility which was imposed upon him as the presiding judge at this trial, in which the issue involved, not only the peace and dignity of the state, and the protection of her citizens, but also the life and death of defendant. There were no requests for special instructions. No contention is made by the learned and zealous counsel, who was assigned by the court to aid the defendant upon his trial, and who appeared for him, upon his appeal in this court that there was any error of law or of legal inference with respect to this aspect of the case to be presented to or passed upon by this court.

Defendant denied that he is the man who committed the crime for which he has been convicted by the jury. His defense is an alibi. He contends that upon all the evidence the jury should have had, at least, a reasonable doubt as to the truth of the state's contention that he is the man who committed the crime. He complains that evidence relied upon by the state to sustain this contention was erroneously admitted by the court.

The prosecutrix testified that she first saw defendant on the day upon which the crime was committed sweeping the sidewalk with a broom at Fairview Cottage, where she had gone, early in the morning, as was her custom, to sell to patients at the cottage wild flowers gathered by her on the mountain side. She was across two roads from defendant, up a little trail. She noticed him "because he made a racket down there and was looking up at me. He did not speak, and I did not speak to him. I said to myself, 'I wonder what in the world that negro is looking at me for."' Defendant's counsel promptly moved that this last statement by the witness be stricken from the record, and excepted to the refusal of the court to allow the motion. This exception cannot be sustained. It was competent to be considered by the jury as evidence tending to show the circumstances under which the witness first saw defendant that morning for the purpose of enabling the jury to determine both the credibility and weight of the witness' testimony identifying defendant as the man who, shortly thereafter, assaulted her on the mountain side about a mile and a quarter from Fairview Cottage. Defendant admits that he was sweeping with a broom at Fairview Cottage, and that he saw prosecutrix there that morning, as she testified. Evidence of the impression made upon witness at the time was competent as pars rei gestae. What she said to herself relative to defendant's manner is not only evidence of the extent to which she observed defendant at the time, but also tends to show that defendant was observing her. If she had made the statement to another at the very time, it would have been competent. Young v. Stewart, 191 N.C. 270, 131 S.E. 735.

After defendant was arrested by the sheriff during the afternoon of the day on which the crime was committed, he was taken into the presence of prosecutrix at the hospital. The sheriff testified that he went to prosecutrix's room accompanied by defendant, another colored man, and three deputies; that when he got into the room, about a third of the way, the prosecutrix raised herself up from her bed and said, "Sheriff, you have got him; that's him, that's him, that's him." Prosecutrix had testified that defendant was the man who had assaulted her; that she saw him plainly, and looked into his face, and knew that defendant was the man who had assaulted her the moment he came into the room. "He is the man who assaulted me and raped me. He certainly is the man, sitting right over there. I knew him when they brought him in here the other day. I can't be in doubt about it." Defendant excepted to the testimony of the sheriff as to statement made to him by prosecutrix. The court instructed the jury that this statement was not substantive evidence, but was to be considered by the jury merely as corroborative evidence. Defendant's assignment of error based upon this exception cannot be sustained. The sheriff further testified:

"I stepped to the right and said to her, 'The large one or the small one?' She said, 'The small one.' This boy, standing kind of between me and her in bed, began to cry. I was on her left, and she said, 'You pretty nigh killed me.' The boy said, 'I was just telling you about them flowers."'

Kelsey Bartlett, witness for the state, testified that he lives on Sunset Mountain, and knows prosecutrix. He knows the road upon which it is alleged the assault was made. He crosses it twice a day, going to and from his work. On several occasions he has seen a colored man "slinking along the road" in the evening. "I have...