State v. Parker

• Decision Date: 19 December 1903
• Citation: 46 S.E. 511,134 N.C. 209
• Parties: STATE v. PARKER.
• Court: North Carolina Supreme Court

46 S.E. 511

134 N.C. 209

STATE v. PARKER.

Supreme Court of North Carolina

December 19, 1903

Appeal from Superior Court, Durham County; W. R. Allen, Judge.

John Parker was convicted of rape upon a child less than 10 years of age, and appeals. Reversed.

Clark C.J., dissenting.

In a prosecution for rape, the court should have charged as to the nature and meaning of corroborative evidence, and not have merely called attention to the argument and contention of the state's counsel as to the effect of such evidence without instructing the jury as to whether such contention properly stated the law.

Jones Fuller, for appellant.

The Attorney General, for the State.

MONTGOMERY J.

The crime of which the prisoner has been convicted--rape upon a little girl of less than 10 years of age--is a most unusual one and most revolting. The evidence is not before us. It would be difficult to imagine a case in which the rules (1) that the evidence should be such as to satisfy the jury beyond a reasonable doubt of the defendant's guilt, (2) that none but competent evidence should be received by the court, and (3) that evidence competent for a special or restricted purpose should be confined to that end and clearly explained by the court to the jury, were more in point than the present case. The only exception that appears in the record is one directed to the alleged failure of his honor to properly instruct the jury in respect to certain evidence that was offered and received as corroborative in its nature. The prosecutrix had been examined as a witness for the state. The solicitor then put in evidence the examination of the prosecutrix, taken by the justice of the peace, D. C. Gunter when the matter was being investigated by him, "for the purpose of corroborating the prosecutrix." The solicitor then introduced W. A. Cobb "for the purpose of corroborating Lilly Lyon," who testified substantially that he was a policeman of the city of Durham, and that on the evening of the 22d of February, 1902, about 10 days after the crime was said to have been committed, at the home of the mother of the prosecutrix, the prosecutrix told him that the prisoner came to her home and hired her to go with him to his home to wait on his wife, who was then sick; that he started with her, and took her out of the way into the woods, and then violently and against her will ravished her; that he then carried her to his home, and on the next day took her with him to the same woods and did the same thing to her. If the above was all that there is in the case, there would be no error in the proceeding; for we must presume, nothing to the contrary appearing in the record, that the prosecutrix, when on the witness stand, had been assailed on her cross-examination to such a degree as to amount to an attempt to impeach her credibility, or that witnesses had been introduced by the defendant for that purpose. But after the case was made out and agreed upon by the solicitor and the counsel of the prisoner, counsel applied to the judge who tried the case for an amendment to the statement of the case on appeal, so that it might appear that his honor did not explain to the jury in the charge that the statement referred to in the evidence of Gunter and the evidence of Cobb was to be considered as corroborative evidence only. His honor stated that he could not say with certainty whether he did so or not, but that he was willing for Mr. Foushee (acting solicitor) to make the amendment if he thought proper to do so, provided the statement was made as follows: "Upon objection being made to the statement referred to in the evidence of Gunter and to the evidence of Cobb, the court stated in the presence of the jury that the evidence would be admitted only as corroborative of the evidence of the prosecutrix. In the charge to the jury the court recited the evidence of the prosecutrix, and said substantially, 'The state contends that the jury ought to believe her, etc., and that she is corroborated.' The state says that she made the same statement before Gunter and to Cobb, and that these statements corroborate her evidence upon the stand. In other words, the state argues that she made the same statement before, and that this should lead the jury to believe what she now testified to." We are of the opinion that upon the amendment made to the case on appeal, in the language required by his honor, the jury was not properly instructed upon the matter of the corroborative evidence of Gunter and Cobb. Of course, when the evidence was introduced, and when it was received as corroborative evidence, it was in the presence of the jury, for it was for their consideration, but that did not satisfy the demands of the law.

In Sprague v. Bond, 113 N.C. 551, 18 S.E. 701, the evidence there introduced was only competent for the purpose of corroboration, and that was conceded when it was offered and for that purpose alone did his honor admit it. The court there, discussing the same question which had been decided in Bullinger v. Marshall, 70 N.C. 520, said: "The learned justice who delivered the opinion of the court in that case was evidently loath to yield to this innovation as he considered it, foreseeing, as he no doubt did, that it would be most difficult to restrain the effect of such evidence and prevent it from operating on the minds of the jury as substantive proof of the facts in dispute. Because there is this danger of its exercising an improper influence on the jury, it is incumbent on the judge presiding at the trial, where such corroborative evidence is introduced, to see to it, even without any request for special instructions, that the jury fully understand the use they are permitted to make of it, and we must hold that the failure to caution them in this particular, when such a request is made as was done by the defendants here,...