State v. Parish

• Decision Date: 18 November 1889
• Citation: 10 S.E. 457,104 N.C. 679
• Parties: STATE v. PARISH
• Court: North Carolina Supreme Court

10 S.E. 457

104 N.C. 679

STATE v. PARISH

Supreme Court of North Carolina

November 18, 1889

This was an indictment for rape, tried at the January term, 1889 of the superior court of Wake county, before GRAVES, Judge. The indictment was drawn for the common-law offense.

The defense having on cross-examination sought to impeach the testimony of the complaining witness, a daughter of defendant, as to declarations made to her mother defendant's wife, it is not a violation of the rule that a wife's evidence is not competent against her husband for the state to introduce, in corroboration of the complaining witness, a third person, who overheard the conversation; it appearing that the corroborating witness mentioned only one declaration by the wife, which was part of the res gestae of the crime.

C. E Goodwin, of the regular venire, was challenged by the state for that he had a suit pending and a tissue in this court, and, it being found as a fact that he was a party to an action pending and at issue, the cause was allowed; and the prisoner excepted. The state introduced Esther Parish, daughter of the defendant, who testified that she was about 11 years old. That the prisoner "would meet her, and carry her down in the old field, and put his private parts to mine." She said: "He would do this so often that I can't remember how often. The first time was in the field. I think it was more than a year ago. He said: 'Let me feel your privates.' I ran. He caught me. I screamed. He took me to a ditch. I was scared so bad, and it has been so long ago, I can't say whether I was hurt." The witness further testified that "one morning after that, he (the prisoner) went to the field without his breakfast, and I carried it to him, with some water. He said: 'I will have to pay you for this.' He took hold of me, put me down, and put his privates to mine. His privates entered mine, and made me sore." The state now offered to show an alleged rape at another time. The prisoner objected. The court ruled that the state was not confined to any particular time, but might introduce evidence tending to show other acts,-- tending to show that the prisoner had committed the act charged at other times, --further saying that at the close of the state's testimony the solicitor would be compelled to elect which particular act he would rely upon. The objection was overruled, and the prisoner excepted. The witness testified that at various other times and places the prisoner had violated her person. "I remember one time, when he was plowing in the new ground. I went to carry him some water. He threw me over the fence, and put his privates in mine. I went to the house, and told my mother. She went down there, and said something. He said he would stop this. Julia Jones was at the house scouring. When my mother called him to dinner, he was along time coming. When he came, he brought a long switch, and said that he intended to make his children mind him. Julia Jones was scouring the piazza. He did not say anything to her." The prisoner objected to any evidence tending to show any offense committed at any time other than that laid in the bill of indictment. This objection was overruled, and the prisoner excepted. The witness then stated that at another time the prisoner took her from the bed, where she was sleeping with her brother, to his bed, and put his privates in hers; that at that time the prisoner slept in the little room, where there were two beds, and that the mother of witness and one Florence Stanly occupied the big room, in which was but one bed; that when her father took her from the bed with her brother he (the brother, Joe Parish) waked her mother, and told her; that thereupon her mother told Florence Stanly to take the witness in bed with her, (Stanly,) in the big room, which was done, and next morning told Florence Stanly to take one of the beds out of the little room, and put it up in the big room, which was done. This witness also testified that one day in "fodder-pulling time," last summer, the prisoner got her in the fodder loft, and put his privates to hers. Upon cross-examination the witness, in answer to questions as to how frequently this occurred, said, "Every week." As to how often during the week, she said: "Two or three times a week, when I was at home. I went from home on this account. Went to my grandfather's to stay all night and all day, and to Raleigh. Would stay week and a half or two weeks. I went to Raleigh three times." This witness also stated that she never at any time consented to these acts of carnal intercourse with her father, the defendant.

Joe Parish, brother of the witness Esther, was introduced by the state to corroborate the statement made by Esther, that her father had taken her from the bed, where she was sleeping with him. The state now proposed to show the details of the statement made by the witness Esther to her mother, in the hearing of this witness. The prisoner objected, upon the ground that it was incompetent for the state to prove details of conversations overheard by witness between Esther and her mother, regarding her father's treatment of her, not testified to by Esther; and also on the ground that a wife's evidence is not competent against her husband, except in case of assault upon the wife by the husband, and the state could not do by indirection that which the law expressly prohibited it from doing directly; and also because the state cannot show, for the same purpose, details of other offenses of like nature to that charged in the bill of indictment, and said to have been committed by the prisoner. The court, being of the opinion that the witness Esther had been cross-examined with a view to impeach her credibility, overruled the objection made, and the prisoner excepted. Joe Parish, witness for the state, testified: "I am son of prisoner, and brother of Esther Parish. Once, when I was sleeping with my sister, father came to the bed, took my sister off, and carried her to his bed. I told my mother. My sister was asleep when he took her in his bed. She was crying. I have seen such things many times. I have heard Esther tell mother many times. The night he took her off her bed, she told mother. Have heard Esther tell of other times. She would tell mother about father putting her over the fence. Was crying when she told mother. Said he got on her, and hurt her. Julia Jones was then scouring. Heard father say to mother, if she named it to him, he would stripe the life out of her. I am fifteen years old." Joseph P. Gulley, brother of defendant's wife, was a witness for the state. Upon cross-examination the prisoner proposed to show by this witness that his wife and himself lived amicably and peaceably, with the view of contradicting Esther and Joe Parish. The state objected. Objection sustained. Prisoner excepted. F. M. Caudle was introduced by the state for the purpose of corroborating Esther Parish. He testified that in conversation with her she had told him that her father commenced "messing" with her in the summer; that he took her down in the field, and took up her clothes; that she called for her mother; that a negro boy came along, and the prisoner quit. Julia Jones was introduced by the state to corroborate Esther Parish. Defendant objected, because witness Esther had testified that on that occasion he did not ravish her. It was insisted by the solicitor that under the bill of indictment it was competent to prove an assault with intent to ravish, because, in an indictment for rape, the jury might find the prisoner guilty of the main charge of rape or of the minor felony of assault with intent to ravish, or even of a simple assault and battery. The objection was overruled, and the prisoner excepted. The witness then proceeded to state that on the second Saturday in September, 1888, the wife of the prisoner had gone to church. He called Esther to bring him a needle and thread when he was dressing for church, in the big house. She did not want to go, but the witness made her go. That when Esther got to the door the prisoner jerked her in by the arm, and choked her. "She said he choked her, but did not say why he did it. In August, I was there. Esther came to the house, crying. She went to carry prisoner water where he was plowing, in the cotton. Told her mother he put her over the fence, laid her down, and did what he wanted to. Said he hurt her so bad she could hardly walk. She told her mother. Her mother went down to the field." The witness then testified: "I heard conversation at dinnertime. He told her not to come to the field, and not to name that to him any more. He said he worked for his children, and would do what he pleased. Said if she said so again he would stripe the life out of her." The prisoner objected upon the ground taken in a previous objection, that the state could not remove the veil which the law throws over domestic relations of man and wife, and show indirectly, out of the mouth of another, that which it was prohibited from showing directly, by putting the wife on the stand as a witness in the cause. The objection was overruled, and the prisoner excepted. Pending the examination of medical experts, who were necessarily absent from the court, the state rested its case, and by consent the experts were examined later, and elected to rely on the one act when the witness Esther said the prisoner threw her over the fence, in the summer-time, when he was plowing. The prisoner requested the court to rule out all evidence except that bearing on the particular act relied on by the state. The request was refused, and the prisoner excepted.

Evidence for the defense: Florence Stanly testified, for the prisoner that she lived in prisoner's family about five weeks in February and March, 1888; that ...