State v. Smith

• Decision Date: 23 March 1938
• Docket Number: 147.
• Citation: 195 S.E. 819,213 N.C. 299
• Parties: STATE v. SMITH.
• Court: North Carolina Supreme Court

195 S.E. 819

213 N.C. 299

STATE v. SMITH.

No. 147.

Supreme Court of North Carolina

March 23, 1938

Appeal from Superior Court, McDowell County; Felix E. Alley, Judge.

Mann Smith, alias Hiawatha Smith, was convicted of rape, and he appeals.

Affirmed.

A boy slightly over 15 years of age is presumed to be capable of committing rape.

This is a criminal prosecution under a bill of indictment charging the defendant with the commission of the capital felony of rape. The prosecutrix, a girl 13 years of age, was on her way home from school on March 31, 1937. When she walked she took a short cut by way of a path leading through woods. This path turned off at Black Bottom and led over the ridge. After she had gone some distance into the woods she saw the defendant standing by the path. There was evidence that he had seen her coming and had gone to this point to wait for her. When she got within a few steps of him the defendant told her to stop and asked her if she wanted him to shoot her. He had his hands in his pocket; he then took her off the path in the woods and assaulted her and later took her further in the woods and again assaulted her, detaining the prosecutrix altogether about 2 1/2 hours. There was a verdict of "guilty of rape as charged in the bill of indictment." From judgment of death by asphyxiation pronounced thereon, the defendant appealed.

W. R Chambers, Wm. C. Chambers, and Edward H. McMahan, all of Marion, for appellant.

A. A F. Seawell, Atty. Gen., and Harry McMullan and Willis, Asst. Attys. Gen., for the State.

BARNHILL Justice.

The defendant offered no evidence, but rested his defense upon the contentions that: (1) He did not commit the crime; (2) the alleged confessions made by him were incompetent; and (3) that his age precluded his being sentenced to death.

To detail the evidence herein to any considerable extent would serve no good purpose. It is sufficient to say that there was ample evidence offered tending to show that the crime of rape was committed upon the person of the prosecutrix and to identify the defendant as the perpetrator of the crime. The prosecutrix testified to facts sufficient to constitute the offense and she was corroborated by the doctor who examined her, and others. The testimony was sufficient to be submitted to the jury for it to determine whether the threats made by the defendant and the circumstances surrounding the assault were sufficient to, and did, put the prosecutrix in fear and overcome her power of resistance. The prosecutrix likewise identified the defendant on the night following the assault in the afternoon. When the defendant was carried into the presence of the prosecutrix, immediately upon seeing her he said: "That's the girl." The evidence shows that this statement was spontaneous and was provoked only by the sight of the girl. The statements of the defendant offered as evidence of confessions likewise tend to prove both the commission of the offense and the identity of the perpetrator.

But the defendant stressfully challenges the competency of the evidence of statements made by the defendant by way of confession and likewise challenges the admission of this evidence, for that the court did not find the facts. Counsel for the defendant insists that at the time the alleged statements were made by the defendant he was suffering from abject fear. Even so, there is no evidence that the officers having him in charge, or any other person, made any threats against him, offered him any inducement, or held out any hope of reward in exchange for a statement from him. The mere presence of a number of officers at the time the statements were made is not sufficient to affect the competency of the evidence.

The prosecutrix had described the defendant and the clothes that he was wearing at the time of the assault. When he was arrested he did not have on the coat described. When the officers found the coat at his mother's and showed it to him he said that he was the man, and that he assaulted the prosecutrix twice. And then, as stated, when he was taken to the home of the prosecutrix, he spontaneously said: "That's the girl."

When the State offered the evidence of statements made by the defendant the defendant objected and asked permission to cross-examine the witness regarding the voluntariness of the statement. After some considerable cross-examination the defendant requested the court to find the facts regarding the alleged confession and to hold that any evidence regarding the same is incompetent. Thereupon the court asked the witness certain questions as to whether he made any promise held out any hope, or did anything to put the defendant in fear, or to induce him to make the statement. The court made the following entry: "I hold, under the present evidence, that what he said was voluntary." The defendant excepted to the refusal of the court to find the facts regarding the alleged confession, as requested. The only finding the court was permitted to make, was made. In ruling upon the competency of this evidence the law required the court to make the preliminary finding, before admitting the evidence, that the statements were voluntary. A determination of the facts other than this is for the jury. It was not the duty of the court to find further facts. For the court to find facts other than that the statement was volunarily made might be highly prejudicial to a defendant. The court below went as far in this respect as the law permits and there was no error in the refusal to find further facts. Likewise, there was...