State v. Roseman
| Decision Date | 10 November 1971 |
| Docket Number | No. 24,24 |
| Citation | 184 S.E.2d 289,279 N.C. 573 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Frankie ROSEMAN alias Franklin Rosemond. |
Atty. Gen. Robert Morgan and Asst. Atty. Gen. Thomas B. Wood, for the state.
Annie Brown Kennedy, Winston-Salem, for the defendant.
The defendant's Assignments of Error 5 and 6 are to the failure of the court to grant his motion for judgment of nonsuit. Upon such a motion, all admitted evidence favorable to the State, whether competent or incompetent, must be considered and must be deemed true. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679; State v. Stallings, 267 N.C. 405, 148 S.E.2d 252; State v. Virgil, 263 N.C. 73, 138 S.E.2d 777. The question for the court is whether there is substantial evidence to support a finding both that an offense charged in the bill of indictment has been committed and that the defendant committed it. State v. Cutler, supra; State v. Bass, 253 N.C. 318, 116 S.E.2d 772. The evidence in this record is clearly sufficient to support a finding that the offense charged in the bill of indictment was committed and that the defendant was a participant therein. It is immaterial whether he, personally, intended to rape the girl if he, being present, aided and abetted his companions in their assault with such intent. These assignments of error are without merit.
The defendant's Assignments of Error 7 and 9 are to the failure of the court to instruct the jury that it could find the defendant guilty of assault on a female, a lesser offense included within the crime charged in the indictment. Where all of the evidence tends to show that the offense committed, if any, was that charged in the bill of indictment and there is no evidence tending to show the commission of a lesser, included offense, except insofar as it is a necessary element of the offense charged, the court is not required to submit for the jury's consideration the possibility of a verdict of guilty of such lesser, included offense, or to instruct the jury concerning such lesser offense. State v. Bridges, 266 N.C. 354, 146 S.E.2d 107; State v. Jones, 264 N.C. 134, 141 S.E.2d 27; State v. Hicks, 241 N.C. 156, 84 S.E.2d 545; State v. Lamm, 232 N.C. 402, 61 S.E.2d 188. All of the evidence in the present record concerning the assault upon the girl tends to show that the purpose of the assailants was to commit rape. There is no evidence whatever tending to show that she was assaulted for any other purpose, or for no purpose. Under these circumstances, it was not error to instruct the jury that they might return either a verdict of guilty of assault with intent to commit rape or a verdict of not guilty. These assignments of error are without merit.
Assignment of Error No. 8 is that the court instructed the jury that if they found from the evidence and beyond a reasonable doubt, that 'on the twenty-fourth day of April, 1970' the defendant assaulted the girl (the other elements of the offense being included in the instruction), it would be the jury's duty to render a verdict of guilty as charged in the bill of indictment. The alleged error is that the indictment states that the offense occurred on the 25th of April 1970. All of the evidence is to the effect that the girl and her escort went to the dance on the evening of April 24th and left the gymnasium, wherein the dance was held, about midnight and that the assault occurred shortly thereafter. The defendant does not claim an abibi. His statement to the investigating police officer was an admission that he participated in the assault. The portion of the court's charge of which he now complains could not have prejudiced him in any way. There is no merit in this assignment of error.
Assignments of Error 3 and 4 are to the admission in evidence of the typewritten statement signed by the defendant after the court had caused to be cut off from the statement, as originally signed, the first paragraph, which paragraph is quoted in the foregoing...
To continue reading
Request your trial
-
State v. Alston
...and rendered helpless, and (6) evidence that the killing was done in a brutal manner. Id. at 59, 337 S.E.2d at 823. Roseman, 279 N.C. 573, 580, 184 S.E.2d 289, 294 (1971). Substantial evidence means "that amount of relevant evidence that a reasonable mind might accept as adequate to support......
-
State v. Neider
...State v. Vicars, 207 Neb. 325, 299 N.W.2d 421 (1980); State v. Howland, 119 N.H. 413, 402 A.2d 188 (N.H.1979); State v. Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971). It seems quite logical to require some evidentiary conflict or evidentiary insufficiency as to the elements of the greater of......
-
State v. Strickland, 32PA82
...defense is alibi and mistaken identity, and there is no evidence of on-felonious breaking and entering--and State v. Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971)--in assault with intent to commit rape prosecution, no error in refusing to submit assault on a female where there was no evidenc......
-
State v. Mylett
...the perpetrator of such offense." State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) (first citing State v. Roseman, 279 N.C. 573, 580, 184 S.E.2d 289, 294 (1971); then citing State v. Mason, 279 N.C. 435, 439, 183 S.E.2d 661, 663 (1971)). "Substantial evidence is evidence from wh......