State v. Swindell

• Decision Date: 18 February 1925
• Docket Number: (No. 1.)
• Citation: 189 N.C. 151,126 S.E. 417
• Parties: STATE v. SWINDELL.
• Court: North Carolina Supreme Court

126 S.E. 417

(189 N. C. 151)

STATE

v.SWINDELL.

(No. 1.)

Supreme Court of North Carolina.

Feb. 18, 1925.

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.

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.

CLARKSON, J. 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 (as amended in C. S. 4209, supra, under which defendant is indicted). The court in that case said:

"The only exception in the transcript is that Code, § 1096, provides that persons convicted of felonies for which 'no specific punishment is prescribed by statute' shall be imprisoned in the county jail or penitentiary not exceeding two years, and be fined, in the discretion of the court. But the penalty prescribed by Chap. 295, Laws 1895, is specific—fully as much so as that laid down in Code, § 1096, and is different in kind. The former authorities fine or imprisonment in the penitentiary at the discretion of the court. The latter a fine in the discretion of the court, and imprisonment in jail or the penitentiary, not exceeding two years, etc."

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:

"The court stated the contentions of the state and the defendant, and charged the jury according to law. The jury returned a verdict of guilty as charged in the bill of indictment. Upon the return of the verdict the defendant's counsel asked the court to be merciful in his judgment, contending that, while the jury had said the defendant was guilty, he himself insisted that he was not guilty, and that while he was in jail on Thursday, the 21st day of August, during the term of superior court, and upon the day set for his trial when the sheriff had gone to the jail by direction of the court to bring the defendant to trial, one J. B. Farrier, grandfather of Margaret——, had followed the sheriff into the jail, the said Farrier being unknown to the jailor, and that he went to the cell in which the defendant was confined, spoke to him, shook hands with him, then drew a pistol and shot him down in his cell, and that for several days his life was despaired of and he was taken to a hospital, that the ball entered his back, injuring his spinal column, producing paralysis, and that the doctor who attended him testified at the trial that he could not tell whether he would finally recover or not, that the defendantwas on crutches at the time of the trial and defendant's counsel asked the court to take all these matters into consideration. The court replied that it was impossible to tell whether the defendant would finally recover or not, and that this was a matter which the court would have to leave to other authorities to be decided by future developments. The court sentenced the defendant to the state's prison at hard labor for a period of 30 years."

In State v. Driver, 78 N. C. 429, it was said:

"Thus it appears both by precedent, and by the reason of the thing, and by express constitutional provision, that there is a limit to the power of the judge to punish, even when it is expressly left to his discretion. What the precise limit is cannot be prescribed. The Constitution does not fix it, precedents do not fix it, and we cannot fix it, and it ought not to be fixed. It ought to be left to the judge who inflicts it under the circumstances of each case, and it ought not to be abused, and has not been abused (grossly) in a century, and probably will not be in a century to come, and it ought not to be interfered with, " 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 found defendant was guilty "beyond a reasonable doubt." The facts are...