State v. Summitt

• Decision Date: 04 March 1980
• Docket Number: No. 7927SC877,7927SC877
• Citation: 45 N.C.App. 481,263 S.E.2d 612
• Parties: STATE of North Carolina v. Mark SUMMITT.
• Court: North Carolina Court of Appeals

Page 612

263 S.E.2d 612

45 N.C.App. 481

STATE of North Carolina v. Mark SUMMITT.

No. 7927SC877.

Court of Appeals of North Carolina.

March 4, 1980.

Atty. Gen., Rufus L. Edmisten by Sp. Deputy Atty. Gen., John R. B. Matthis and Asst. Atty. Gen., Alan S. Hirsch, Raleigh, for the State.

Frank Patton Cooke and James R. Carpenter, Gastonia, for defendant-appellant.

VAUGHN, Judge.

Defendant's motion for nonsuit was properly denied. While there were some inconsistencies in the evidence for the State, the evidence and the inferences therefrom were sufficient to take the case to the jury on the charged crimes. State v. Bell, 285 N.C. 746, 208 S.E.2d 506 (1974).

Defendant assigned error in the charge of the trial court on the lesser included offenses of second degree rape, assault with intent to commit rape and assault on a female. His argument on appeal is limited only to the charge on second degree rape. The rape statute then in effect provided:

Every person who ravishes and carnally knows any female of the age of twelve years or more by force and against her will, or who unlawfully and carnally abuses any female child under the age of twelve years, shall be guilty of rape, and upon conviction, shall be punished as follows:

(1) First Degree Rape

a. If the person guilty of rape is more than sixteen years of age, and the rape victim is a virtuous female child under the age of twelve years, the punishment shall be death; or

b. If the person guilty of rape is more than sixteen years of age, and the rape victim had her resistance overcome or her submission procured by the use of a deadly weapon, or by the infliction of serious bodily injury to her, the punishment shall be death.

(2) Second Degree Rape Any other offense of rape defined in this section shall be a lesser-included offense of rape in the first degree and shall be punished by imprisonment in the State's prison for life, or for a term of years, in the discretion of the court.

G.S. 14-21 (repealed effective 1 January 1980). Prior to 1973 when the above quoted statute was adopted, there was no division of the crime of rape into first and second degrees. The legislative purpose of dividing the crime of rape into degrees was to reduce the mandatory sentence of death upon all convicted rapists. The 1973 revision did not reconstitute or redefine the crime of rape. State v. Davis, 291 N.C. 1, 229 S.E.2d 285 (1976). Defendant contends the court should have charged only on G.S. 14-21(a)(1) and not G.S. 14-21(a)(2). The evidence did tend to show that defendant unlawfully and carnally abused a female child under the age of twelve and that defendant was more than sixteen years of age and that the victim was a virtuous child under the age of twelve. This would be a violation of G.S. 14-21(a)(1). The evidence on the age of defendant and the victim is not in conflict. However, there was some inference from the evidence, though slight, that the victim was not a virtuous child under the age of twelve. If the child carnally and unlawfully known by a defendant is not virtuous, the crime would be second degree rape. G.S. 14-21(a)(2). The General Assembly certainly did not want to make such an action against a child, even though unvirtuous, a noncriminal act. It was thus made second degree rape. Force and will of the victim when the victim is a child under the age of twelve have nothing to do with the crime. A child of such age is presumed incapable of consent. State v. Cox, 280 N.C. 689, 187 S.E.2d 1 (1972). To argue against the instruction on second degree rape, defendant must argue the victim was clearly and without conflict on the evidence within the age proscription and was virtuous. Then, the error in the instruction would be to the benefit and favor of defendant and not, therefore, a ground for relief. See State v. Hall, 293 N.C. 559, 238 S.E.2d 473 (1977).

In this case defendant was charged with two rapes, one on or about 24 March 1978 and one on or about 28 July 1978. It was the former charge on which defendant was convicted of second degree rape. Of the latter, he was found...