State v. Swindell
Decision Date | 18 February 1925 |
Docket Number | 1. |
Citation | 126 S.E. 417,189 N.C. 151 |
Parties | STATE v. SWINDELL. |
Court | North Carolina Supreme Court |
Appeal from Superior Court, Pasquotank County; Sinclair, Judge.
Joe Swindell was convicted for carnally knowing a virgin between 12 and 16 years of age, and he appeals. Affirmed.
30 years in penitentiary for carnally knowing virgin between 12 and 16 not too severe.
T. J Markham and Aydlett & Simpson, all of Elizabeth City, for appellant.
Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen for the State.
The defendant was indicted under C. S. 4209 (volume 3), which is as follows:
"If any male person shall carnally know or abuse any female child, over twelve and under sixteen years of age, who has never before had sexual intercourse with any person, he shall be guilty of a felony and shall be fined or imprisoned in the discretion of the court; and any female person who shall carnally know any male child under the age of sixteen years shall be guilty of a misdemeanor and shall be fined or imprisoned in the discretion of the Court Provided, that if the offenders shall be married or shall thereafter marry, such marriage shall be a bar to further prosecution."
The charge in the indictment is that:
"The defendant, with force and arms, at and in the county aforesaid, unlawfully willfully and feloniously did carnally know and abuse Margaret ______, a female child over 12 and under 16 years of age; she never before having had sexual intercourse with any person," etc.
The essentials of the crime in this case are (1) carnally know or abuse a female child; (2) over twelve and under sixteen years of age; (3) the female child never before having had sexual intercourse with any person.
The first 13 exceptions and assignments of error by defendant (first abandoned) was to the competency of evidence; we think they are without merit and cannot be sustained. We would consider them seriatim, but we are unable to do so intelligently without setting forth the evidence, which is so shocking, indecent, and revolting that we think it unnecessary for the just determination of this case.
The exception and assignment of error No. 14 is the only serious one we have to consider: "To the judgment of 30 years in the state's prison and hard labor."
Const. of N.C. art. 1, § 14, is as follows:
"Excessive bail should not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted."
The statute under which defendant is indicted says:
"He shall be guilty of a felony and shall be fined or imprisoned in the discretion of the court."
This court, in a unanimous opinion by Clark, J., in State v. Rippy, 127 N.C. 517, 37 S.E. 148, construes C. S. 4172 (Code, § 1096), and chapter 295, Laws 1895 ( ). The court in that case said:
Under the construction given in the Rippy Case, the discretion of the court below is limited only to the constitutional prohibition against "cruel or unusual punishment."
It is set forth in the record that:
In State v. Driver, 78 N.C. 429, it was said:
except in case where the abuse is palpable.
There is no exception to the charge of the court. The jury believed the state's evidence and by their verdict...
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