State v. Williams

• Decision Date: 04 April 1923
• Docket Number: 273.
• Citation: 116 S.E. 736,185 N.C. 685
• Parties: STATE v. WILLIAMS.
• Court: North Carolina Supreme Court

116 S.E. 736

185 N.C. 685

STATE v. WILLIAMS.

No. 273.

Supreme Court of North Carolina

April 4, 1923

Appeal from Superior Court, New Hanover County; Connor, Judge.

Jim Williams was convicted of rape, and he appeals. New trial.

W. F Jones and A. G. Warren, Jr., both of Wilmington, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

WALKER J.

The defendant was convicted of the crime of rape, at the November term, 1922, of the superior court of New Hanover county Judge Connor presiding, and from the judgment upon such conviction appealed to this court.

The state's evidence, if believed, showed beyond any doubt the commission of the crime of rape, all the elements showing in this testimony. The defendant admitted the act, denied any force, and claimed that the act was done with the consent of the prosecuting witness. The additional, and supporting evidence of the state, and that of the defendant, concerned only the corroboration, or confirmation, of the prosecuting witness, on the one hand, and of the defendant, on the other. While the prosecuting witness' testimony showed, if believed, that the defendant accomplished his purpose by the use of a pistol, or gun, yet the defendant not only denied the use of a pistol, or gun, but alleged that it was not in the possession of the defendant at the time the act was committed, and his evidence, perhaps, tended to show that this was true, and to support his contention.

The defendant's only exception in the case arises from the failure of his honor to give to the jury special instructions requested in writing by the defendant's counsel, as follows:

"This is an indictment for rape, which crime includes an assault against a female, and under the laws of North Carolina there are five verdicts that may be returned by the jury under this indictment: (1) Rape, the crime charged in the bill of indictment; (2) assault with intent to commit rape; (3) assault with a deadly weapon; (4) assault upon a female, the defendant being a male over 18 years of age; and finally, 'not guilty,' according as the jury may find."

This instruction the judge refused to give, and the prisoner excepted; but the court gave the following instruction:

"In this case the state alleges that this defendant committed an act of sexual intercourse with the prosecuting witness, Marjorie Bannerman. This allegation is admitted by the defendant. The state alleges that this act of intercourse with Marjorie Bannerman was without her consent, that it was against her will, and that it was accomplished by means of force and violence exerted by this defendant. This the defendant denies. I instruct you that if you find from the evidence in this case, and beyond a reasonable doubt from this evidence that this defendant had an act of sexual intercourse with Marjorie Bannerman, against her will, by means of force and violence, then, gentlemen, he is guilty as charged in the indictment, and your verdict should be guilty. Unless you so find--that is unless you find not only that he had an act of sexual intercourse, but also find that such act was against her will and was accomplished by means of force and violence--it would be your duty to return a verdict of not guilty."

Consol. St. § 4639, so far as material to this point, is as follows:

"On the trial of any person for rape, or any felony whatsoever, when the crime charged includes an assault against the person, it is lawful for the jury to acquit of the felony and to find a verdict of guilty of assault against the person indicted, if the evidence warrants such finding."

The state contends that, while the evidence of the prosecuting witness showed an assault with a deadly weapon upon the prosecutrix, yet this very assault was part of the means used by the defendant to force her. The defendant denies the use of the deadly weapon, he denies the use of any force at all, but sets up the willingness, and consent, of the woman in justification and defense of his act. There is, therefore, in this case, says the state, no evidence which would warrant the judge in giving the charge requested by the defendant's counsel. It further contends that State v. Lance, 166 N.C. 411, 81 S.E. 1092, was an entirely different case from this one. There, the issue was whether there was a rape or an assault. The state further cites the following cases, as illustrative of this distinction: State v. Jones, 98 N.C. 651, 3 S.E. 507; State v. Foster, 130 N.C. 666, 41 S.E. 284, 89 Am. St. Rep. 876; State v. Dixon, 131 N.C. 808, 42 S.E. 944; State v. Merrick, 171 N.C. 788, 88 S.E. 501, and the cases there cited. But we are unable to agree with this contention of the state, or to decide according to it; but our opinion is, and we so hold, that the substance, at least, of the prayer should have been given to the jury and, in failing to do so, the court committed an error.

The instruction requested by the prisoner should have been given, at least substantially, and even if not given, or if it had not been asked for, the judge, of his own motion, should have submitted to the jury proper instructions as to the conviction of a lesser offense than that charged in the bill of indictment, and his failure to do so, even without an appropriate prayer by the prisoner, was error. The statute (Consol. St. §§ 4639 and 4640) provides:

"4639. On the trial of any person for rape, or any felony whatsoever, when the crime charged includes an assault against the person, it is lawful for the jury to acquit of the felony and to find a verdict of guilty of assault against the person indicted, if the evidence warrants such finding; and when such verdict is found the court shall have power to imprison the person so found guilty of an assault, for any term now allowed by law in cases of conviction when the indictment was originally for the assault of a like character.

4640. Upon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime."

It is familiar learning that in the criminal law, as in many other respects, the greater includes the lesser, so that where one offense is alleged in the indictment, and the jury acquits as to that one, it may convict of the lesser offense when the charge is inclusive of both offenses. This doctrine was illustrated in State v. Fritz, 133 N.C. 725, 45 S.E. 957, and the law was there clearly stated by the present Chief Justice where the defendants were indicted, the one for sending and the other for accepting a challenge to fight a duel, Fritz being alone on trial. The Chief Justice said:

"An affray consists of mutual assaults, of which one person, as in this case, may be convicted, where the other may be acquitted or not put on trial. State v. Brown, 82 N.C. 585. Dueling is simply an aggravated form of affray (4 Bl. Com. 145), and under such indictment the parties may be convicted of a mutual fighting by consent without deadly weapon. * * * The charge of the greater offense warrants a conviction of a lesser one embraced in it, just as on an indictment for murder there can be a conviction of murder in the second degree or manslaughter, a principle which chapter 68, Laws 1885, extends to authorize a conviction of assault, if the evidence warrants it, though the prisoner is acquitted of the felony upon an indictment for any felony which includes an assault as an ingredient."

And so the same judge said in State v. Hunt, 128 N.C. at page 586, 38 S.E. at page 474: "Under an indictment for murder the defendant may be convicted either of murder in the first degree, murder in the second degree, or manslaughter, and even of assault with a deadly weapon, or simple assault 'if the evidence shall warrant such finding' when he is not acquitted entirely. Laws 1885, ch. 68. It is as if all these counts were separately set out in the bill (for it includes all of them), State v. Gilchrist, 113 N.C. 673; and the solicitor can nol. pros. any count, and a nol. pros. in such case is in effect a verdict of acquittal as to that. State v. Taylor, 84 N.C. 773; State v. Sorrell, 98 N.C. 738."

And so it was held in State v. Nash, 109 N.C. 824, 13 S.E. 874:

"Where there was a serious conflict between the testimony of the prosecutrix and that of the defendant, it was erroneous to restrict the jury to either the theory of the state or to that of the defendant, as they may predicate their finding upon a hypothesis not consistent with either theory." State v. Johnson, 94 N.C. 863; State v. Smith, 157 N.C. 578, 72 S.E. 853.

It is said, though, that the jury convicted the prisoner of the capital felony, and this excludes the idea that he was guilty of any lesser offense. This is not a correct proposition, but a clear non sequitur, for it does not follow that the jury would not have found the prisoner guilty of one of the lesser crimes included in the larger felony, if they had been properly instructed, as to these crimes, of which there was evidence. The presumption, if there is any, is rather the other way. Anyhow, the prisoner was entitled to have all the material phases of the case submitted to the jury in the charge of the court, and a failure to do so was error, and prejudicial to him, for when the judge attempts to state the law he should state it fully.

It is a well-recognized principle that where one is indicted for a crime and, under the same bill, he may be convicted of a lesser degree of the same crime, and there is evidence tending to support the milder verdict, the prisoner is entitled to have his view presented to the jury under a correct charge, and an error in this respect...