State v. Roberts, 743
| Citation | 270 N.C. 449,154 S.E.2d 536 |
| Decision Date | 24 May 1967 |
| Docket Number | No. 743,743 |
| Parties | STATE, v. James Clifford ROBERTS. |
| Court | United States State Supreme Court of North Carolina |
Alwood B. Warren, Durham, for defendant appellant.
Donna Forsythe, ten years old, was examined on the Voir dire in respect to her competency as a witness. Her testimony clearly showed that she was competent, the judge so found, and the defendant did not except. Donna Forsythe, in the presence of the jury, testified in brief substance, except when quoted, as follows: About 2:30 P.M. on 26 April 1966, she was walking home from school in the city of Durham. She first saw the defendant on the other side of the sidewalk. He was walking. She turned down a dirt road because that was the shortest way to get home. Defendant followed her down the dirt road, placed his hand under her shoulders, and put his hand under her dress. When he put his hand under her dress, she told him to leave her alone. He held her about two minutes, shoved her over into some bushes, and then turned her loose, saying 'If that is the way you want to be, I will turn you loose.' She started going up the street, and he followed her. She ran home and told her mother.
The State presented evidence; the defendant did not. Defendant assigns as error the denial of his motion for a judgment of compulsory nonsuit made at the close of the State's evidence. The State's evidence leaves us with considerable doubt as to whether the defendant had the intent at any time to have sexual intercourse with this child below the age of consent. State v. Lucas, 267 N.C. 304, 148 S.E.2d 130. On the record before us it is not necessary to decide if the State's evidence is sufficient to carry the case to the jury on the felony charge in the indictment, for the reason defendant has no assignment of error in the record presenting that precise point for decision. The court properly denied the motion for judgment of compulsory nonsuit, because the State has plenary evidence tending to show that defendant unlawfully and wilfully committed an assault on the female child Donna Forsythe, who was ten years old on 26 April 1966.
The indictment here alleges that the offense was committed 'on the 26th day of April, A.D. 196--.' We do not approve of such careless pleading.
The jury, after deliberating about one hour and ten minutes after the judge's charge, returned to the courtroom and stated they would like to hear the testimony of Donna Forsythe, while she was on the stand, read. After this request, the court advised the jury that it was going to recess for luncy and that when it returned their request would be considered by the court. After the court reconvened, the court granted their request. After this testimony was read, the jury retired to deliberate further. After deliberating about one hour and a half, the jury returned into open court with a verdict of 'guilty as charged.' Counsel for defendant moved that the jury be polled. Upon the polling of the jury by the clerk, one juror stated that he did not assent to the...
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