State v. Pearson, 361

• Decision Date: 28 November 1962
• Docket Number: No. 361,361
• Citation: 258 N.C. 188,128 S.E.2d 251
• Court: North Carolina Supreme Court
• Parties: STATE, v. Orville PEARSON.

Page 251

128 S.E.2d 251

258 N.C. 188

STATE, v. Orville PEARSON.

No. 361

Supreme Court of North Carolina.

Nov. 28, 1962

Ray Jennings, Taylorsville, for defendant-appellant.

T. W. Bruton, Atty. Gen., and Harry W. McGalliard, Asst. Atty. Gen., for the State.

PARKER, Justice.

Rosina Clontz, a witness for the State, testified in substance as follows:

She is fourteen years old. On 24 May 1961 she got into an automobile with Orville Pearson, and went with him to the FCX store in Taylorsville, a short distance from where she lives. They got two Pepsi-Colas, and went from the FCX store down by a chicken house on 'a teeny dirt road.' There was nobody with her but Orville Pearson.

After Rosina had given this testimony the following appears in the record:

'(Witness first testified that when they left the store they went back home, and that she did not go with him anywhere else that day. The trial Judge at this point permitted the Solicitor to ask leading questions on account of the 'tender years' of the witness).

'The Solicitor asked her to tell what happened after they got to the chicken house and stopped. No answer was given. The Solicitor again asked her to go ahead and without him leading her to tell what happened. She said: 'Well, we were just sitting there talking--and he put his arms around me and kissed me.' The witness then stopped and the Court directed her to go ahead. The Solicitor then asked her the following question: 'Now, you told us about his stopping at the chicken house and you told us that he put his arms around you and kissed you. Did he put his hands on you?' To which the witness answered: 'Yes, Sir.' The Solicitor then asked: 'Did he take out his private parts?' Witness answered: 'Yes, Sir.' Solicitor asked: 'What did he do with them?' To which there was no answer. The Court instructed witness to answer his question. The Solicitor then asked witness if he put his private parts in hers, and the witness answered: 'Yes, Sir.' The Solicitor then asked what she did then, and she answered that she started crying. She testified that she did not know how long they were there; that after leaving they went down close to Edith Mitchell's and he let her out and went on. Upon being asked by the Solicitor if she had told her mother what happened, she said that she had. The Solicitor then asked her if she had ever had sexual intercourse with any person other than him, and she replied: 'No, Sir.'

'DEFENDANT'S EXCEPTION NO. 1.'

Immediately thereafter in the record appears the testimony of Rosina on crossexamination, which is in substance:

She doesn't remember what time of the evening it was: it wasn't daylight. When she got home after dark her mother gave her a whipping, and then she told her mother that Orville had done something to her. She lives right close to where Orville lives. She has known him about two years, and she visits at his mother's home.

Defendant assigns as error 'the action of the presiding judge in allowing the solicitor to ask leading questions of the prosecuting witness in regard to the alleged act of sexual intercourse with the defendant Orville Pearson.'

Notwithstanding the general rule against asking one's own witness leading questions, the control of such is largely within the sound discretion of the trial judge. In this jurisdiction the law has been well settled for many years that it is within the sound discretion of the trial judge whether or not counsel shall be permitted to ask leading questions, and the exercise of such discretion, in the absence of an abuse thereof, will not be disturbed on appeal. Bank of Statesville v. Pinkers, 83 N.C. 377; Howell v. Solomon, 167 N.C. 588, 83 S.E. 609; State v. Buck, 191 N.C. 528, 132 S.E. 151; In re Will of Williams, 215 N.C. 259, 1 S.E.2d 857; State v. Hargrove, 216 N.C. 570, 5 S.E.2d 852; State v. Harris, 222 N.C. 157, 22 S.E.2d 229; State v. Cranfield, 238 N.C. 110, 76 S.E.2d 353; Stansbury, North Carolina Evidence, Witnesses, sec 31; 98 C.J.S. Witnesses, § 329.

Generally, leading questions are permissible to arrive at facts when modesty or delicacy prevents full answers to general interrogatories. Hence, because of the delicate nature of the subject of inquiry, many courts have recognized and held that rape and carnal abuse cases, and other cases involving inquiry into delicate subjects of a sexual nature, constitute an exception to the general rule against leading questions, and that in such cases the permitting of leading questions of the prosecutrix, particularly if she is of tender years, is a matter within the sound discretion of the trial judge. State v. Beatty, 226 N.C. 765, 40 S.E.2d 357; Antelope v. United States, 10th Cir., 185 F.2d 174; Buckley v. State, 19 Ala.App. 508, 98 So. 362; Parker v. State, 26 Als.App. 61, 152 So. 610; State v. Upton, 65 Ariz. 93, 174 P.2d 622; Reynolds v. State, 220 Ark. 188, 246 S.W.2d 724; People v. Jackson, 124 Cal.App.2d 787, 269 P.2d 17; Wills v. People, 100 Colo. 127, 66 P.2d 329 (statutory rape--prosecutrix 17 years of age); Warren v. People, 121 Colo. 118, 213 P.2d 381; State v. Miller, 71 Kan. 200, 80 P. 51; Meredith v. Commonwealth, 265 Ky. 380, 96 S.W.2d 1049; Summerville v. State, 207 Miss. 54, 41 So.2d 377 (statutory rape--prosecutrix 16 years of age); State v. Coffman, 360 Mo. 782, 230 S.W.2d 761; State v. Riley, 28 N.J. 188, 145 A.2d 601; Flannery v. State, 135 Tex. Cr.R. 235, 117 S.W.2d 1111, rehearing denied 22 June 1938; State v. Tenney, 137 Wash. 47, 241 P. 669; State v. Davis, 20 Wash.2d 443, 147 P.2d 940; 98 C.J.S. Witnesses § 331(d), pp. 45-46. See also Stinson v. State, 125 Ark. 339, 189 S.W. 49, a prosecution for carnal abuse of a female under 16 years of age, in which the Court held that, in view of the natural reluctance of the prosecutrix to testify to specific acts, it was not an abuse of the trial court's discretion to ask leading questions tending to show what had taken place and the actual commission of the offense.

State v. Beatty, supra, was a criminal prosecution upon an indictment charging rape, but the solicitor only asked for a conviction of an assault with intent to commit rape. There was a verdict of guilty as to all defendants, and each defendant was sentenced to imprisonment, from which each defendant appealed. According to the record on file in the office of the clerk of this Court, the victim was 18 years of age, and she was allowed over defendants' objections to answer leading questions asked by the solicitor on direct examination in respect to matters of a sexual nature. Defendants assigned this as error. The Court held that permission to ask leading questions was within the sound discretion of the trial judge, that the exercise of such discretion, in the absence of an abuse thereof, will not be reviewed on appeal, and that no prejudicial error has been shown, and the exception cannot be sustained.

In Flannery v. State, supra, defendant was convicted of the crime of rape. The victim was at the time an eight-year-old girl. Defendant excepted to the prosecuting officer eliciting from the victim answers in response to leading questions. The Court said:

'We can see no error in the State's attorney asking the witness what appellant did to her unionalls, and eliciting the answer that he (appellant) opened the front of her unionalls; and further eliciting the answer 'Yes sir' to the question 'Did he put his male organ into your female organ?' While such question was leading, nevertheless the rigor of the rule forbidding the asking of such questions bears some flexibility when dealing with a witness of tender years. It is a well-known characteristic that little girls of tender years are usually loath to testify about such matters as this one was called to testify, and sometimes refuse to talk at all, through nervousness or innate modesty, and it appears from the bill that the witness did not answer anything at all when first asked to tell what appellant did after he had thrown her to the ground, and it necessitated a leading question in order to obtain an answer to such a usually embarrassing question. There was other testimony in the record rather strongly corroborative of Drusilla's, and we do not think any injury was shown herein.'

In Antelope v. United States, supra, the defendant, a full-blooded Indian, was convicted of the crime of statutory rape upon an Indian girl 13 years of age. The Court said:

'Likewise, the contention that the court committed reversible error in permitting the District Attorney to ask Eldine leading questions is without merit. The prosecuting witness here was a young, timid Indian girl. She was in strange surroundings. The questions, of necessity, were embarrassing to her. She testified in a timid, halting...