State v. Truelove

• Decision Date: 22 March 1944
• Docket Number: 217.
• Citation: 29 S.E.2d 460,224 N.C. 147
• Parties: STATE v. TRUELOVE et al.
• Court: North Carolina Supreme Court

29 S.E.2d 460

224 N.C. 147

STATE v. TRUELOVE et al.

No. 217.

Supreme Court of North Carolina

March 22, 1944

Criminal prosecutions tried upon indictments charging the defendants Annis (Ennis) Truelove, Bill Byrd and Kathaleene (Catherine) Byrd, in one bill, with abducting Edna Byrd in violation of G.S. § 14-41 (C. S.§ 4223), and charging the defendants Annis Truelove and Bill Byrd. in another bill, with an assault upon Edna Byrd with intent to rape, consolidated and tried together, as both charges arose out of the same transaction or a series of connected transactions. Exception.

There is evidence on behalf of the prosecution to show that on 21 August, 1942, about 3 P. M., in the Town of Coats, the three defendants induced Edna Byrd, a child under 14 years of age who at the time was skating alone on a sidewalk near her grandmother's home, to enter an automobile in which they were riding, under the guise of offering to take her to her grandmother's and then continued on beyond her grandmother's house and carried her out into the country, where the two male defendants assaulted her with intent to rape according to her testimony. Due to car trouble, they did not get back until 10:00 P. M., or about seven hours from the time of the alleged abduction.

The evidence is in sharp conflict as it relates to both indictments. It is amply sufficient, however, to carry the case to the jury on both charges.

Verdicts: On the charge of abduction: 'Defendants guilty of abduction as charged in the indictment'. On the charge of assault with intent to rape: 'Not guilty'.

Judgment: Imprisonment in the State's Prison for not less than three nor more than five years. Judgment against feme defendant suspended on terms.

The defendants appeal, assigning errors.

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

Neill McK. Salmon, of Lillington, for defendants.

STACY Chief Justice.

The questions presented are, (1) the propriety of the consolidation, and (2) the correctness of the charge.

First, in respect of the consolidation, it is to be observed that the jury returned a verdict of 'not guilty' on the second indictment, or the one charging assault with intent to rape. This would seem to render the exception feckless, even if initially regarded as one of substance, though the State contends the consolidation was proper in any event. State v. Stephens, 170 N.C. 745, 87 S.E. 131.

It is provided by G.S. § 15-152 (C.S. § 4622) that when there are several charges against any person for the same act or for two or more transactions connected together, or for two or more transactions of the same class of offenses, which may be properly joined, the court will order them to be consolidated for trial. State v. Norton, 222 N.C. 418, 23 S.E.2d 301; State v. Chapman, 221 N.C. 157, 19 S.E.2d 250.

Speaking to the subject in State v. Combs, 200 N.C. 671, 158 S.E. 252, 254, it was said: 'The court is expressly authorized by statute in this state to order the consolidation for trial of two or more indictments in which the defendant or defendants are charged with crimes of the same class, which are so connected in time or place as that evidence at the trial of one of the indictments will be competent and admissible at the trial of the others.'

On the record as presented, we think the question of consolidation was a matter resting in the sound...