State v. Ray, 741

Citation164 S.E.2d 457,274 N.C. 556
Decision Date11 December 1968
Docket NumberNo. 741,741
PartiesSTATE of North Carolina v. Edward Theodore RAY.
CourtUnited States State Supreme Court of North Carolina

T. W. Bruton, Atty. Gen., James F. Bullock, Harry W. McGalliard, Deputy Attys. Gen., for the State.

C. C. Malone, Jr., Durham, for defendant appellant.

R. HUNT PARKER, Chief Justice.

Defendant is an indigent. By order of the trial court, he was permitted to appeal In forma pauperis, and the county of Durham was ordered to furnish his counsel a transcript of the trial, and the county of Durham was ordered to pay the cost of mimeographing the appeal and the brief of his counsel. A writ of Certiorari was allowed, upon petition of defendant's counsel, C. C. Malone, Jr., giving him additional time to prepare his case on appeal, which accounts for the delay in the hearing of the appeal. C. C. Malone, Jr., one of the trial counsel and defendant's counsel of record in this Court, filed a brief and made an oral argument here.

A brief summary of the State's evidence is as follows: Mrs. Jeane Daily, a white woman, was married to John Calvin Daily, and they had a son two years old. They lived in the city of Durham. On 7 December 1966 about 7:30 p.m., she went shopping alone and parked her 1965 Pontiac Tempest in the back parking lot next to Sears Roebuck and Company, one of two parking lots operated by Sears Roebuck and Company. Sears Roebuck and Company is on Main Street in the city of Durham. She remained in Sears Roebuck and Company's store about thirty minutes. She then returned to her automobile and got in it. Before she could close the front door on her side, she saw defendant, Edward Theodore Ray, standing at the open door of her automobile. He pointed a pistol at her and told her to move over. She refused. Defendant told her if she did not move over he would blow her head off. Defendant Ray got in the car, crawled over her, and while still pointing the pistol at her ordered her to drive. She did not see anyone else in the parking lot. She drove out of the closest exit, made one right turn and then another, at which time she did not know where she was. She drove for approximately ten minutes, making several right and left turns. She brought the automobile to a halt at the command of the defendant in a dark area which seemed to be under construction. Defendant told her to get into the back seat. Defendant had put the pistol in his pocket but drew it again when out of fear she began screaming. She then got into the back seat at the defendant's command, and defendant Ray got into the back seat of the automobile with her. Defendant started pulling and jerking at her raincoat and blouse in an effort to take them off. At this point defendant Ray noticed her wrist watch and said that he would take the watch and started pulling on it. Defendant was unable to unfasten the catch on the watch and told her to take it off. When she took it off, she noticed the guard chain was broken. She also noticed that defendant Ray was wearing a dark sweat shirt and dark trousers. Defendant made her remove her skirt, and he raped her. It is not necessary to repeat her words in respect to the sordid details of the rape. As she was lying in the back seat of the car she heard an automobile and said, 'There is a car.' Defendant Ray jumped up and she started screaming, at which time defendant Ray got out of the automobile into the street. When defendant opened the door she got out of her automobile and ran to an automobile which was passing them driving very slowly. As she was running to catch up with the automobile, she heard a gunshot behind her. When she reached the automobile which had passed at a slow rate of speed, she asked the driver to please help her. The driver opened the door and she crawled into the back seat of the car. At that time she was completely naked.

George W. Jackson was employed as a night watchman by M. B. Kahn Construction Company, which was in the process of constructing the Fayetteville Street Housing Project in the city of Durham. As he was making his rounds as night watchman in his automobile about ten or twelve minutes after 8 p.m. on the night in question, he noticed a car standing still and heard someone screaming and hollering. When he paused to stop his automobile beside the Daily automobile, a man raised up in the back seat. The lady was still hollering. As soon as the man in the back seat raised up, he (Jackson) idled his car off very slowly. He saw a Negro man who got out of the car and ran. Mrs. Jeane Daily ran to his car, screaming and asking for help. She had no clothes on. He opened his automobile door and she climbed over into the back seat. As she was getting into his car, he heard a shot, the sound coming from behind him. By the time she was fully in his automobile, he heard another shot. He then heard someone running through the housing project stepping on loose boards that had been left there. He asked Jeane Daily what had happened. After she told him and after seeing her naked, he told her to cover herself with his overcoat which was in the back seat. She had blood on her legs. He drove to a service station and called the police and Jeane Daily's husband.

After Mrs. Daily was assaulted, W. H. Upchurch, a detective in the police department of the city of Durham, found a cigarette lighter on the floor of the back seat of her automobile. Mrs. Daily and her husband stated the lighter did not belong to them. Mary Ann Gibson a witness for the State, testified that defendant Ray was living in the living room of her house during December 1966. She identified the cigarette lighter the police found in Mrs. Daily's automobile as a cigarette lighter belonging to defendant Ray. Defendant Ray had permitted her to use it in her house when she did not have a match. It had an unusual design-like umbrella handle. She has never seen a cigarette lighter like it before. The flap on the lighter that defendant Ray had was loose. She saw defendant put the cigarette lighter in his pocket on the night of 7 December 1966. She testified that the next day, to wit, 8 December 1966, defendant Ray asked her and her husband if they had seen a cigarette lighter anywhere around the house. She saw the lighter the last time on 7 December 1966. Defendant left her house when it was about dark on 7 December 1966 wearing a dark blue pull-over sweater and a pair of overalls, and did not return until about 9 o'clock that night. Defendant returned wearing the same garments; however, it appeared as though he had been running through bushes for his trousers were full of briars. She had seen defendant Ray with a pistol that looked like State's Exhibit No. 6. On 7 December 1966 she heard Ray ask her husband for some bullets and Ray fired the pistol once in her back yard.

Alden Gibson, the husband of Mary Ann Gibson, testified in brief summary: During December 1966 defendant Ray was living in his house. He was unemployed and paid no rent. During the afternoon of 7 December 1966 he and Ray drank some wine. On 7 December 1966 Ray asked him to fix a jammed gun for him. After he fixed the pistol Ray asked him for some bullets. He gave Ray some bullets around 6:30 or 6:45 p.m. that night and Ray left the house. Ray fired the gun in the air once as he left the house. He recognized State's Exhibit No. 6, the pistol, as the automatic pistol Ray had and took with him on 7 December 1966. It was the pistol he unjammed for Ray. He was at home when Detective Upchurch of the Durham police force came there on 12 December 1966 and arrested Ray. State's Exhibit No. 6, the pistol, was found behind the pillow of the sofa in the front room after defendant was arrested. Ray had been sitting on the couch just before his arrest.

When defendant Ray was searched at the county jail after his arrest, a watch was found in the watch pocket of his trousers. The chain on it was broken. Mrs. Daily testified that the wrist watch taken from Ray's pocket was the Bulova watch which she was wearing on the night she was raped, and she identified the watch by scratches on the top of the crystal of the watch.

Defendant assigns as error the denial of his motion aptly made to quash the indictment for the reason that he is a Negro and Negroes were excluded from service upon the grand jury that returned the indictment against him solely by reason of their race, in violation of the equal protection clause of the 14th Amendment to the United States Constitution and Article I, section 17, of the North Carolina Constitution.

It is hornbook law that a valid indictment is a condition precedent to the jurisdiction of the Superior Court to determine the guilt or innocence of the defendant, and to give authority to the court to render a valid judgment. North Carolina Constitution, Article I, section 12; State v. Yoes and Hale v. State, 271 N.C. 616, 157 S.E.2d 386; State v. Bissette, 250 N.C. 514, 108 S.E.2d 858. An indictment returned by a grand jury not legally constituted is not a valid indictment. State v. Wilson, 262 N.C. 419, 137 S.E.2d 109.

It is no longer open to question that in the United States and in the State of North Carolina a conviction of a Negro cannot stand if it is based on an indictment of a grand jury or the verdict of a petit jury from which Negroes were excluded by reason of their race. State v. Covington, 258 N.C. 495, 128 S.E.2d 822; Miller v. State, 237 N.C. 29, 74 S.E.2d 513; Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599; Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991; Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77.

The burden is upon the defendant to establish the racial discrimination alleged in his motion to quash the indictment. State v. Lowry and State v. Mallory, 263 N.C. 536, 139 S.E.2d 870; State v. Wilson, supra; State v. Covington, supra; Miller v. State, supra; Whitus v. Georgia, supra; Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692; Fay v....

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