State v. Roy

• Decision Date: 02 May 1951
• Docket Number: No. 220,220
• Citation: 233 N.C. 558,64 S.E.2d 840
• Parties: STATE, v. ROY. STATE v. SLATE.
• Court: North Carolina Supreme Court

Page 840

64 S.E.2d 840

233 N.C. 558

STATE, v. ROY.

STATE v. SLATE.

No. 220

Supreme Court of North Carolina.

May 2, 1951

Harry McMullan, Atty. Gen. and T. W. Bruton, Asst. Atty. Gen., for the state.

H. F. Seawell, Jr., Carthage, for Harold D. Roy.

Charles Ross and Neill McK. Ross, Lillington, for James D. Slate.

DENNY, Justice.

The defendants except to and assign as error the failure of the court to grant their motion for a continuance. The motion was made on the ground that a witness, most vital to their defense, was out of the State.

It will be noted the name of the witness was not given nor does it appear that any effort was made to secure his presence at the trial. The alleged crime was committed on 29 November, 1950, and an investigation of the alleged facts was made shortly thereafter. A true bill was found against both defendants on 8 January, 1951, and the cases were called for trial on 11 January, 1951. However, there was no affidavit by defense counsel that they had not had time to prepare for trial. State v. Creech, 229 N.C. 661, 51 S.E.2d 348; State v. Gibson, 229 N.C. 497, 50 S.E.2d 520. This assignment of error will not be upheld.

The defendant Roy contends that since all the evidence pointed toward the crime of rape, and the State not having asked for a conviction of that crime, that his motion for nonsuit on the charge of assault with intent to commit rape should have been allowed. The contention is without merit. For, it is well settled that an indictment for an offense includes all the lesser degrees of the same crime. State v. Moore, 227 N.C. 326, 42 S.E.2d 84; State v. Gay, 224 N.C. 141, 29 S.E.2d 458; State v. Jones, 222 N.C. 37, 21 S.E.2d 812; State v. High, 215 N.C. 244, 1 S.E.2d 563; State v. Williams, 185 N.C. 685, 116 S.E. 736; State v. Hill, 181 N.C. 558, 107 S.E. 140. And although all the evidence may point to the commission of the graver crime charged in a bill of indictment, the jury's verdict for an offense of a lesser degree will not be disturbed, since it is favorable to the defendant. G.S. § 15-169: State v. Bentley, 223 N.C. 563, 27 S.E.2d 738; State v. Harvey, 228 N.C. 62, 44 S.E.2d 472; State v. Matthews, 231 N.C. 617, 58 S.E.2d 625.

The defendant Slate, who is a private in the United States Army and stationed at Fort Bragg, contends that at the times referred to in the State's evidence, he was acting under the command of his sergeant, a non-commissioned officer, towit, Sergeant Roy, and did only what he was directed to do, and is, therefore, not liable for his conduct in connection with this alleged offense. The contention has no merit. The duty of a subordinate to obey a superior officer, while one is subject to military law, has reference only to lawful commands of such superior officer, in matters relating to military duty. And there is certainly nothing on this record to indicate that either of these defendants were engaged in...