State v. Murry

• Citation: 277 N.C. 197,176 S.E.2d 738
• Decision Date: 14 October 1970
• Docket Number: No. 5,5
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Willie Lee MURRY.

Page 738

176 S.E.2d 738

277 N.C. 197

STATE of North Carolina v. Willie Lee MURRY.

No. 5.

Supreme Court of North Carolina.

Oct. 14, 1970.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. I. Beverly Lake, for the State.

J. H. Barrington, Jr., Lumberton, for defendant appellant.

BOBBITT, Chief Justice.

The act of 'carnally knowing and abusing any female child under the age of twelve years' is rape. G.S. § 14--21; State v. Monds, 130 N.C. 697, 41 S.E. 789; State v. Johnson, 226 N.C. 671, 40 S.E.2d 113. Neither force, State v. Johnson, 226 N.C. 266, 37 S.E.2d 678, nor intent, State v. Gibson, 221 N.C. 252, 20 S.E.2d 51, are elements of this offense.

'The terms 'carnal knowledge's and 'sexual intercourse' are synonymous. There is 'carnal knowledge' or 'sexual intercourse' in a legal sense if there is the slightest penetration of the sexual organ of the female by the sexual organ of the male. It is not necessary that the vagina be entered or that the hymen be ruptured; the entering of the vulva or labia is sufficient. G.S. § 14--23; 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; Burdick: Law of Crime, section 477; 44 Am.Jur., Rape, section 3; 52 C.J., Rape, sections 23, 24.' State v. Bowman, 232 N.C. 374, 61 S.E.2d 107; State v. Jones, 249 N.C. 134, 105 S.E.2d 513.

The State's evidence was positive as to each and every element of the crime charged in the bill of indictment.

Defendant presents two questions: (1) Was the admission of Johnson's testimony as to defendant's in-custody statements erroneous and prejudicial? (2) Did the court err in instructing the jury with reference to the lesser included offense of assault on a female?

There was ample evidence to support Judge Brewer's findings of fact. It is not contended that Johnson did not carefully and fully advise defendant as to his constitutional rights. Defendant contends the incriminating statements attributed to him by Johnson should have been excluded because (1) defendant was sixteen years old, and (2) several officers were present when the statements were made.

With reference to defendant's age, the record shows: Johnson testified on Voir dire he knew defendant was 'a sixteen-year-old boy.' He testified at trial that defendant stated 'that he completed the eighth grade in school'. In the annotation, 87 A.L.R.2d at 626, it is stated: 'A confession is not inadmissible, in the absence of a statutory provision to the contrary, merely because the person making it is a minor.' This rule obtains in this jurisdiction. State v. Hill, 276 N.C. 1, 14, 170 S.E.2d 885, 894.

With reference to the presence of other officers, the record shows: The interrogation of defendant on both occasions was by F. D. Johnson, Special Agent of the State Bureau of Investigation. Their first conversation took place in the sheriff's office in the courthouse in Lumberton. During portions of the interview, Luther W. Hagens, Chief of Police of Red Springs, and Leroy Freeman and Carl Herring, Deputy Sheriffs, were in the office. Other (unidentified) officers stayed 'in the outside office.' The following morning, when the tape recording was made, the only officer present, except Johnson, was the deputy sheriff (Freeman) who had custody of defendant.

'(T)he mere fact that a confession was made while the defendant was in custody of police officers, after his arrest by them upon the charge in question and before employment of counsel to represent him, does not, of itself, render it incompetent.' State v. Gray, 268 N.C. 69, 78, 150 S.E.2d 1, 8, and cases cited.

Nothing in the evidence indicates that any officer mistreated, deceived or otherwise coerced defendant. Obviously, by getting on the roof of his house, defendant was seeking to conceal himself from the officers. After his arrest, according to Johnson's testimony and the statements attributed by Johnson to defendant, defendant was not intimidated or frightened. Upon the uncontroverted evidence and factual findings, the court properly admitted Johnson's testimony as to incriminating statements made by defendant.

As indicated, defendant assigns as error the court's instruction that the jury might return a verdict of guilty of an assault upon a female by a male person Over the age of eighteen years. It is contended that this instruction is erroneous because the only evidence as to defendant's age (Johnson's testimony on Voir dire) tends to show that he was sixteen years of age. In so instructing the jury, seemingly the court had in mind the provisions of G.S. § 14--33 (G.S. 1B, Recompiled 1953) prior to the...