State v. Wagstaff
| Citation | 12 S.E.2d 657,219 N.C. 15 |
| Decision Date | 08 January 1941 |
| Docket Number | 725. |
| Parties | STATE v. WAGSTAFF. |
| Court | United States State Supreme Court of North Carolina |
The State's evidence tended to show that the defendant, a young negro man, in the nighttime, during the absence of her husband, entered her residence and got in the bed where the prosecutrix, a middle-aged white woman, was sleeping, and by force and threats, and against her will, had sexual intercourse with her.
The defendant's evidence tended to show the defendant entered her residence upon the invitation of the prosecutrix, in the nighttime, during the absence of her husband, and there had sexual intercourse with her with her consent.
The jury returned a verdict of guilty of rape as charged in the bill of indictment, and from judgment of death predicated upon on the verdict the defendant appealed, assigning errors.
William L. Robinson, of Burlington, for appellant.
Harry McMullan, Atty. Gen., and T. W. Bruton and G. B. Patton Asst. Attys. Gen., for the State.
The first exceptive assignment of error discussed in defendant's brief is addressed to the Court's sustaining the State's objection to the interrogatory propounded by defendant's counsel to the State's witness, a physician, as follows: "And in those other instances was there the same measure of calm and placidity that you observed here?" The witness had testified that he was called to see the prosecutrix in the early morning after the alleged assault was committed upon her and that he found one small mark "just reddened and might have been caused by trauma, blow or force or something" on her thigh, and that "I think I have had two other cases similar cases to this one."
The answer that the witness would have given had he been permitted to answer the interrogatory, or what the defendant proposed to prove by the interrogatory, does not appear in the record, but since the interrogatory was propounded on cross-examination of an adverse witness it may not be essential that this should so appear to have the exception considered, but whether the answer would have been in the affirmative or in the negative it would have been incompetent as res inter alios acta. And even if this were not true the failure to permit answer to the interrogatory is rendered harmless by the subsequent statement of the witness: "I have no opinion as to her (prosecutrix's) nervous temperament in a situation like that." This assignment of error cannot be sustained.
The second, third and fourth assignments of error discussed in the defendant's brief are addressed to the Court's refusal to sustain his objection to the testimony of certain witnesses as to confessions made by the defendant after his arrest. The State's evidence tends to show that in the Court House in Graham within a half hour after his arrest the defendant told the officers that he had entered the residence of the prosecutrix when he knew her husband was absent and against her will had sexual intercourse with her, and that the following night in the jail in Greensboro the defendant signed a statement to the same effect. The Sheriff of Alamance County and the Jailer of Guilford County both testified that no threats were made to extort and no promises held out to induce the confessions, and that the prisoner was warned that any statements made by him would be used against him. When the evidence of the confessions were offered the defendant tendered no evidence of their involuntariness as he was permitted to do. State v. Whitener, 191 N.C 659, 132 S.E. 603. Unless challenged, the voluntariness of a confession will be taken for granted. State v. Sanders, 84 N.C. 728, 729; State v. Richardson, 216 N.C. 304, 4 S.E. 2d 852. The fact that the defendant was under arrest and a number of officers were present at the time it was made does not ipso facto render a confession incompetent for lack of voluntariness. State v. Murray, 216 N.C. 681, 6 S.E.2d 513. Where the evidence is conflicting as to voluntariness of a confession, and the trial judge finds that such confession was voluntarily made and admits it to be introduced and there is any evidence to support such finding, the conclusion of the judge is not reviewable, State v. Whitener, supra, and a fortiori when there is no evidence tendered of coercion or inducement. These assignments cannot be sustained.
The fifth and sixth exceptive assignments of error discussed in defendant's brief are addressed to the admission in evidence of certain photographs of the house wherein it was contended the crime was committed and to the exclusion of certain testimony relative to certain photographs that were lost. The photographs were competent for the limited purpose of explaining the testimony of the witnesses and were admitted only for this purpose. State v. Perry, 212 N.C. 533, 193 S.E. 727. The testimony as to lost photographs was incompetent, since photographs not produced obviously...
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