State v. Wilson

• Decision Date: 27 November 1940
• Docket Number: 146.
• Citation: 11 S.E.2d 567,218 N.C. 556
• Parties: STATE v. WILSON.
• Court: North Carolina Supreme Court

11 S.E.2d 567

218 N.C. 556

STATE v. WILSON.

No. 146.

Supreme Court of North Carolina

November 27, 1940

Charles Hutchins and Briggs & Atkins, all of Burnsville, for defendant-appellant.

Harry McMullan, Atty. Gen., and T. W. Bruton and George B. Patton Asst. Attys. Gen., for the State, appellee.

SEAWELL Justice.

The defendant was tried under a bill of indictment containing two counts, as follows:

"The jurors for the State upon their oath present, That Arthur Wilson, late of the County of Yancey, on the 1st day of January, in the year of our Lord one thousand nine hundred and forty, with force and arms, at and in the county aforesaid, in and upon one Chloe Johnson, against the peace of the State, then and there being violently and feloniously did make an assault on her the said Chloe Johnson, then and there violently, forceably, feloniously and against her will did rape, ravish and carnally know her, against the form of the statute in such cases made and provided, and against the peace and dignity of the State.

"The jurors for the State upon their oath further present that Arthur Wilson, being a male person, over the age of 18 years late of the County of Yancey, on the 1st day of January 1940, A. D., with force and arms, and in said county aforesaid, did unlawfully, wilfully and feloniously carnally know and abuse one Chloe Johnson, a female child over 12 years, and under 16 years of age, who had never before had sexual intercourse with any person, against the form of the statute in such cases made and provided, and against the peace and dignity of the State."

When the jury was empanelled the Solicitor announced that he would not ask for conviction of the capital offense of rape charged in the first count, but of such lesser degree of crime as the evidence might appropriately present. With this announcement the cause went to trial upon the two-count bill.

When the jury returned to the court room to render their verdict the record discloses that the following occurred:

"The Clerk: Gentlemen, have you agreed on your verdict?

"Juror: We have.

"The Clerk: What is your verdict on the first count?

"Juror: Not Guilty.

"The Clerk: What is your verdict on the second count?

"Juror: Guilty of an assault on a female.

"The Court: Gentlemen, the Court cannot accept this verdict. It is not rendered in accordance with the instructions the Court has given you. As the Court has heretofore explained to you, as to the first count in the bill of indictment, the jury may return one of three possible verdicts, namely, a verdict of guilty of an assault with intent to commit rape, or a verdict of guilty of an assault on a female, or a verdict of not guilty, and that as to the second count in the bill of indictment, which is the charge that the defendant had sexual intercourse with a female child over 12 years of age and under 16 years of age, who had not previously had sexual intercourse with any person, the jury may return one of two possible verdicts, namely, a verdict of guilty or a verdict of not guilty. You may retire to your jury room and deliberate further as to your verdict."

After deliberating for 30 minutes or more, the jury returned again to the court room, when the following occurred:

"The Clerk: Gentlemen, have you agreed on your verdict?

"Juror We have.

"The Clerk: What is your verdict as to the first count?

"Juror: Guilty.

"The Court: Guilty of what?

"Juror: Guilty of an assault on a female.

"The Court: Guilty of an assault on a female: So say you all, gentlemen of the jury?

"Jurors: (All twelve jurors spoke or nodded their assent).

"The Clerk: What is your verdict as to the second count?

"Juror (The juror who had heretofore acted as spokesman hesitated and made some remark, in a low voice, which ...