State v. Montgomery

• Decision Date: 29 March 1922
• Docket Number: 275.
• Parties: STATE v. MONTGOMERY.
• Court: North Carolina Supreme Court

111 S.E. 173

183 N.C. 747

STATE v. MONTGOMERY.

No. 275.

Supreme Court of North Carolina

March 29, 1922

Appeal from Superior Court, New Hanover County; Bond, Judge.

Clyde P. Montgomery was convicted of rape and he appeals. No error.

The evidence for the state consisted of the testimony of the prosecutrix, who was 12 years old at the time of the crime as to the assault claimed to have been made by the defendant the testimony of her 8 year old sister who witnessed the assault, and the testimony of her mother and father, and of a physician, that she had been violated. The defendant denied that he committed thé offense, and introduced a number of character witnesses who testified as to his good character. Another witness for the defendant testified that she could have seen and heard a struggle at the place where defendant was alleged to have committed the crime, but neither saw nor heard anything indicating an assault, and that she saw prosecutrix shortly after the alleged crime, and that prosecutrix at such time appeared to be all right.--Statement by editor.

Evidence held to sustain a conviction.

J. C King, W. F. Jones, and Herbert McClammy, all of Wilmington for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

WALKER J.

The state's evidence, if believed, was amply sufficient to establish all the essential elements of the crime.

The defendant's counsel in their brief do not insist upon their exceptions 1 and 2, and so they have abandoned them, under our rule. But there is no merit in them.

Exception 3 was to testimony by Maude Smith, 8 year old sister of the prosecuting witness, Ruby Smith, that "she was too scared when she witnessed the act of defendant upon her sister to call out and alarm the neighborhood." The witness was clearly entitled to give this explanation of her failure to give the alarm, its weight to be determined by the jury.

Exception 4 was to admission of testimony by the mother of Ruby Smith that Ruby soon after the occurrence complained of physical and nervous suffering. Ruby Smith, however, had previously been on the stand, and had herself testified to this suffering, and the judge told the jury that they were to consider the evidence from the mother only in so far as it tended to corroborate the statement of the girl made here, and for no other purpose. This ruling was more favorable to the defendant than he was entitled to have it. Involuntary expressions as to existing suffering are admissible in themselves when physical condition is a material question in the investigation. This was made material here by the nature of the offense.

Exceptions 5, 6, 7, and 8 were all to similar evidence, which was plainly admissible. The same observation may be made to exception 9.

Exception 13 was to a part of the judge's charge in which he was stating one of the contentions of this defendant. Whether or not he stated this contention correctly does not appear from the record. If it was stated incorrectly, the defendant's counsel should have called the court's attention at the time to its incorrectness, if they deemed it incorrect. To take such an exception after the charge is delivered, and in the case on appeal, is contrary to the rule, and numerous decisions of the court.

Exception 14 was to the following part of the charge, especially that in brackets:

"In earlier part of the trial, gentlemen, I called your attention to this fact, that in order to corroborate a witness the law allows another witness to testify that on prior occassions he had made the same statement that he made here as a witness on the stand, and it allows the jury to consider it, not as substantive evidence, but as corroborative evidence; that is, for this purpose: [How far does it persuade the jury to believe as true the statement made by the witness on the stand, by reason of the fact that the witness has made the same statement about the same occurrence on other occasions, if the jury find that the witness did make the same statement on prior occasions?] They have a right to consider it in that view, simply as assisting them in seeing how far are they persuaded to accept as true the statements made by the witness on the stand. Now, then, as I have said to you, it is not substantive evidence tending to prove the defendant's guilt; it is to be considered only for the purpose of corroboration, as I have outlined to you."

The criticism of the defendant's counsel is directed to the use of the word "persuade." That criticism, however, if just, would, applied as it was to corroborative statements of the prosecuting witness, Ruby Smith. tend to weaken the force of those statements; that is, the jury must be induced to believe those statements before they can give them any weight. However this may be, the jury could not, in any sense, have been misled by the use of this term, taking the whole charge together. The average juror is not a philologist. He would not stop to consider the exact meaning of a word when its immediate context interpreted it. Besides the word "persuade" is also defined as "to cause to believe."

Exception 15 was taken to that portion of the judge's charge included in brackets below, as follows:

"Now the defendant contends, as I said to you just now, that he has brought a large number of witnesses here upon the question of his character. The defendant has a right to prove that his character is good if he can when he is being tried for crime, and our courts have all along said that the possession of good character by a man on trial is substantive evidence to be considered by the jury as tending, along with the other evidence, to show his innocence. [ The same law says, however, that, notwithstanding the evidence as to the defendant's character, if the jury find beyond a reasonable doubt that the defendant is guilty, then the question of his character 'cuts no figure'; that is, if upon consideration of all the evidence in the case the jury say that the guilt of the defendant is proven beyond a reasonable doubt, then the question of his character no longer cuts any figure.] Because it is just as much a crime for a man of good character to violate the law as it is for a man of

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