State v. Powell

• Decision Date: 10 March 1890
• Citation: 11 S.E. 191,106 N.C. 635
• Parties: STATE v. POWELL.
• Court: North Carolina Supreme Court

11 S.E. 191

106 N.C. 635

STATE v. POWELL.

Supreme Court of North Carolina

March 10, 1890

Appeal from superior court, Halifax county; MACRAE, Judge.

J. M Mullen, W. H. Day, and R. O. Burton, for appellant.

The Attorney General, for the State.

SHEPHERD J.

1. The testimony of Laura Shines was admissible for the purpose of corroborating the prosecutrix and her brother, both of whom had been previously examined. It was, however, competent only for that purpose; and it was the duty of the court to instruct the jury that it was in this view only that they could consider it. Burton v. Railroad Co., 84 N.C 192; State v. Ballard, 798 N.C. 627. There is nothing in the record to show that his honor failed to perform this duty, and we cannot assume that he did not give the proper instructions. It is well settled that, when a party complains of error, it is his duty to make it appear to the court. Every presumption is in favor of the correctness and regularity of judicial proceedings. The charge was not excepted to, and is therefore not set out in the record. There is absolutely nothing to show what his honor did or did not charge. The exceptions as to the admission of testimony are overruled.

2. The exception to the remarks of the solicitor in his address to the jury is also untenable. The remarks were not objected to nor was the court requested to give any instruction in regard to them. State v. Suggs, 89 N.C. 527.

3. The defendant moves in arrest of judgment because the indictment does not sufficiently charge an assault with intent to commit rape. The indictment charges the intent as follows "With intent her, the said Jessie Shines, then and there, feloniously and unlawfully, carnally to know and abuse." We think it clear, in view of our authorities, that the indictment is defective, and cannot be sustained even under the liberal rules of construction contained in Code, § 1183. In State v. Jim, 1 Dev. 142, the bill charged that the assault was with intent to "ravish and carnally know," yet the court held that the omission of the words "forcibly, and against the will", was fatal, and that the words "feloniously ravished" would not supply the defect. This ruling is upheld in State v. Johnson, 67 N.C. 55, where it is said by READE, J., "that there is no doubt that the indictment must charge the act to be done forcibly; *** and, although 'ravished' would seem to imply force, yet it is necessary to...