State v. Trippe

• Decision Date: 24 February 1943
• Docket Number: 1.
• Citation: 24 S.E.2d 340,222 N.C. 600
• Parties: STATE v. TRIPPE.
• Court: North Carolina Supreme Court

24 S.E.2d 340

222 N.C. 600

STATE v. TRIPPE.

No. 1.

Supreme Court of North Carolina

February 24, 1943

The defendant was charged with carnal knowledge of a female under the age of sixteen years, in violation of C.S. § 4209 as amended by Pub.Laws 1923, c. 140, § 1. There was verdict of guilty, and from judgment imposing prison sentence the defendant appealed.

Harry McMullan, Atty. Gen., and George B. Patton and Hughes J Rhodes, Asst. Attys. Gen., for State.

J Henry LeRoy, of Elizabeth City, for defendant.

DEVIN Justice.

The defendant assigns error in the denial by the court below of his motion for judgment as of nonsuit, but an examination of the record leads to the conclusion that the case was properly submitted to the jury.

The statute under which the defendant was indicted and convicted declares that "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 ***." In this case all the essential elements of the crime charged were made to appear. State v. Swindell, 189 N.C. 151, 126 S.E. 417. There was competent evidence on the part of the State tending to show that the defendant, a man 48 years of age, had sexual intercourse with the State's witness at a time when she was only 14 years of age, and that she had theretofore never had sexual intercourse with any person. The State's witness, now 15 years of age, testified to four acts of intercourse with the defendant, the first time in June 1941, again in September 1941, and twice in 1942, and that she had never had intercourse with any person other than the defendant. She further testified that as a result of such intercourse she became pregnant, and in April 1942, gave premature birth to a baby which did not live. The doctor thought from her statement this was six months after conception.

Thebill of indictment charged that the criminal act occurred September 13, 1941, but the fact that the date so alleged was subsequent to the date on which the witness testified the first act of intercourse occurred would not support the contention that there was a failure of proof that at the time alleged in the bill she had never before had sexual intercourse with any person. The date mentioned in the bill of indictment was not of the essence of the offense charged. In such case, both by statute and by the decisions of this court, it has been established that variance between allegation and proof as to time is not material where no statute of limitations is involved. C.S. § 4625; State v. Overcash, 182 N.C. 889, 109 S.E. 626; State v. Newsom, 47 N.C. 173. In the words of Chief Justice Stacy, in State v. Williams, 219 N.C. 365, 13 S.E.2d 617, 618, "The exact dates are not regarded as capitally important." It is to the girl's first act of intercourse with a man, when she is under sixteen years of age, that the law attaches criminality on the part of the man. State v. Houpe, 207 N.C. 377, 177 S.E. 20; State v. Porter, ...