State v. Winder
| Decision Date | 19 April 1922 |
| Docket Number | 2. |
| Citation | 111 S.E. 530,183 N.C. 776 |
| Parties | STATE v. WINDER. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Pasquotank County; Horton, Judge.
L. L Winder was convicted of the crime of carnally knowing a female child under 14 years of age, and he appeals. No error.
In a criminal prosecution, it is proper for the state on re-examination to explain insinuations impeaching the character of its witnesses brought out on cross-examination.
Defendant's witness, J. G. Baum, testified that he had seen the prosecutrix down on the wharf alone several times, on one occasion between 9 and 10 o'clock at night and on another occasion had seen her flirting with two men in a boat. He also testified that the general reputation of the prosecutrix was bad.
Defendant's exceptions 3, 4, and 5 were as follows:
Third. In overruling the defendant's objection to the question asked the witness, J. G. Baum, "And now you have got yourself up to the point where you will come here and swear the little girl's reputation is bad?"
Fourth. In overruling the defendant's objection to the question asked the witness, J. G. Baum, "And don't you know that 12 months before that child was not more than 12 years old at that time?"
Fifth. In overruling the defendant's objection to the question asked the witness, J. G. Baum, "Don't you know the other time you saw her, outside of the occurrence you spoke of, she was there to borrow a bicycle from Bob Black, a friend of her father?"
W. L Cahoon, Meekins & McMullan, P. G. Sawyer and Thompson & Wilson, all of Elizabeth City, for appellant.
James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.
The defendant was convicted at the November term, 1921, of the superior court of Pasquotank county, Judge Horton presiding of the statutory crime of carnally knowing a female child (Hattie Puckett) under 14 years of age, and from the judgment upon such conviction, appealed to this court.
The statute upon which the prosecution was based is section 4209 C. S., as follows:
"If any person shall unlawfully carnally know or abuse any female child over twelve and under fourteen years old, who has never before had sexual intercourse with any person, he shall be guilty of a felony and shall be fined or imprisoned in the state's prison, in the discretion of the court."
The state's evidence, if accepted as true, was conclusive of defendant's guilt.
Exception 1 was to the court's overruling defendant's challenge to, and refusing to stand aside, five jurors, who on their voir dire stated that they had formed an opinion that the defendant was guilty, but could lay this aside, hear the evidence, the argument of counsel and the charge of the judge, and render a fair and impartial verdict according to the evidence. These were competent jurors. This ruling of the court is fully sustained by many decisions of this court presenting the same question. One of the more recent cases is State v. Terry, 173 N.C. 761, 92 S.E. 154, in which it substantially appeared that after challenge to a juror, and upon cross-examination, as well as upon examination by the court, the juror testified that he could "eliminate from his mind all that he had heard or read, and that he could go into the jury box and be governed solely by the evidence produced upon the trial and by the charge of the court, and he could give the state and the prisoner an absolutely fair trial. On examination by the judge, the juror stated again that he could render a verdict uninfluenced by any opinion he may have formed or anything that he may have heard or read. The court in its discretion found the said jurors to be impartial, and had them tendered and sworn. With reference to this ruling of the court, it was held in that case to be in "exact accord" with previous decisions of this court, and especially with the very recent case of State v. Foster, 172 N.C. 960, 90 S.E. 785, which cites with approval the case of State v. Banner, 149 N.C. 519, 63 S.E. 84, in which the same questions were asked and like answers returned as in the case now before this court. The decision there was that a juror having been tested according to the standard used in the present...
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