State v. Petry

• Decision Date: 31 January 1946
• Docket Number: 433
• Citation: 36 S.E.2d 653,226 N.C. 78
• Parties: STATE v. PETRY.
• Court: North Carolina Supreme Court

36 S.E.2d 653

226 N.C. 78

STATE v. PETRY.

No. 433

Supreme Court of North Carolina

January 31, 1946

The defendant was tried upon a bill of indictment charging him with an assault, with intent to commit rape upon one Martha Anne Midgette. The jury returned a verdict of guilty of an assault with intent to commit rape. From sentence of imprisonment predicated on the verdict the defendant appealed, assigning errors.

W Brantley Womble and L. S. Brassfield, both of Raleigh, for defendant, appellant.

Harry M. McMullan, Atty. Gen., and Hughes J. Rhodes, Ralph M Moody, and J. E. Tucker, Asst. Attys. Gen., for the State.

SCHENCK Justice.

The defendant was convicted upon the charge of having committed an assault upon one Martha Anne Midgette, with the intent to commit rape upon the said Midgette, and judgment of imprisonment was pronounced, from which the defendant appealed to the Supreme Court, assigning errors.

This case can best be discussed by considering the exceptive assignments of error in the order set out in the appellant's brief.

The first exceptive assignments of error set out in the appellant's brief relate to the admission in evidence over objection of the defendant, of a blouse contended by the State to have been worn by the prosecutrix at the time of the alleged assault. It is contended by the appellant that the testimony of the prosecutrix was to the effect that the blouse at the time it was offered in evidence was not in the same condition as it was immediately after the alleged assault, and was therefore not competent to be introduced in evidence. In the first place we do not concur in the defendant's contention as to the testimony of the prosecutrix. An examination of the record reveals that the prosecutrix at one time testified in effect that the condition of the blouse was the same at the time of its introduction in evidence and at the time immediately following the assault. She testified on re-direct examination, that the blouse was in the same condition at the trial as when she took it off the day of the assault, although at another time she said the condition was not the same. Her testimony on this subject appears to be inconsistent, and if it be so, such inconsistency in the testimony goes only to its credibility. State v. Baxley, 223 N.C. 210, 25 S.E.2d 621. The blouse introduced had certain tears about the shoulder, and the prosecutrix, as well as the witness Hodge, testified that the night of the alleged assault the blouse prosecutrix had on was torn about the shoulder. The admission of the blouse in evidence was competent for the purpose of corroborating these two witnesses, and, in the absence of request to limit it to corroboration, it was competent for general purposes. State v. Shepherd, 220 N.C. 377, 17 S.E.2d 469; Rule 21, Rules of Practice in the Supreme Court, 221 N.C. 558. These exceptions cannot be sustained.

The second group of exceptive assignments of error set out in appellant's brief are those relating to the refusal of the Court to sustain defendant's motion at the conclusion of State's evidence and renewed at the conclusion of all the evidence, to dismiss the action as it relates to the charge of an assault with intent to commit rape. While the appellant does not seem to controvert that there was sufficient evidence to be submitted to the jury upon the charge of an assault, he does controvert that there was sufficient evidence to be submitted to the jury upon the charge of an assault with intent to commit rape. The gravamen of the charge in ...