State v. Dill

184 N.C. 645

Opinion

Adams, J".

During the progress of the trial, as a matter of caution, we presume, the prisoner’s counsel entered of record twenty-one exceptions, but they have restricted their brief to a consideration of only five. All not included in the brief are deemed to be abandoned. Rule 34, 174 N. C., 837; Amended Rule, 182 N. C., 922; S. v. Freeman, 146 N. C., 615; Britt v. R. R., 148 N. C., 37; S. v. Spivey, 151 N. C., 679.

The first to he considered is exception 17. The charge was concluded in the afternoon, and after deliberating three or four hours, the jury returned to the court room and one of the jurors requested that the testimony of the prosecutrix be read by the stenographer. The court thereupon cautioned the jury that they must rely upon their recollection, and that the reading of the testimony should be permitted only for the purpose of refreshing their memory. The stenographer then read the evidence of the prosecutrix taken on the direct examination, whereupon the juror who had made the request said, '“That is all I want.” The prisoner excepted because the court did not require the stenographer to read the evidence taken on cross-examination, and the testimony of the witnesses who had been examined by the defense. The prisoner and his counsel were present, and they neither made request to this effect nor intimated disapproval of his Honor’s order or instruction. Surely this exception is entirely without merit. The prisoner’s silence may well be deemed a waiver of his right to object after the verdict is returned. Davis v. Keen, 142 N. C., 502; Simmons v. Davenport, 140 N. C., 407; S. v. Yates, 155 N. C., 455; S. v. Willoughby, 180 N. C., 677.

Exception 18: At the same time a juror requested further instruction as-to the legal effect of Mrs. "Williams’s delay in telling her husband of the assault. The prisoner excepted to this instruction: “The mere fact that she delayed in making her statement does not in itself discredit her testimony.” His Honor had previously said that her delay was a circumstance to he considered in determining her credibility, and subsequently, that her conduct after the alleged assault should be weighed in finding whether she had told the truth — in finding whether it impaired, discredited, or corroborated her testimony. The exception must be overruled. Where the charge taken in its entirety fairly and correctly presents the law it will afford no ground for reversing the judgment, even if an isolated expression should be found to be technically inaccurate. S. v. Exum, 138 N. C., 602; Hodges v. Wilson, 165 N. C., 323; White v. Hines, 182 N. C., 289.

Exceptions 19, 20: In response to a juror’s inquiry, the court instructed the jury to consider the environment, training, and experience of the prosecutrix, while investigating the reason of her delay in making known the assault, and to ascertain from the evidence whether her conduct was attributable to her temperament or to some other cause. The prisoner excepted to the instruction on the ground that the court emphasized the State’s contention regarding her failure to make outcry without sufficient explanation of the circumstances on which the prisoner relied. But a careful perusal satisfies us that the charge, instead of being subject to this criticism, embodies a clear presentation of the circumstances relied on to establish the defense. Besides, the prisoner made no request for more specific instructions or for a more definite statement of his contentions on any phase of the evidence. Simmons v. Davenport, supra; S. v. Yates, supra.

The ninth is the prisoner’s cardinal exception. It is made to rest upon the decision in S. v. Stines, 138 N. C., 686, and is addressed to his Honor’s modification of a requested instruction that it was incumbent on the State, if it could do so, to show that the prosecutrix made outcry soon after the occurrence, and that her failure to do so was a suspicious circumstance, tending to impeach her credibility. The instruction given was as follows: “It has been suggested that it was incumbent upon the State, if it could do so, to show that the prosecutrix made an outcry at or shortly after the occurrence; and her failure to do so from Thursday morning until Sunday night, and keeping to herself the facts of the assault, unless satisfactorily explained to you by the evidence, would be a suspicious circumstance against her as to the credibility of her testimony. The fact, however, that she made no disclosure to any person from Thursday until Sunday does not mean that you must disregard her testimony, but it is a fact and circumstance to be considered by you as to what effect you ought to give it in determining the credibility of her testimony.” The prisoner excepted to the interpolation of the phrase “unless satisfactorily explained to you by the evidence.”

In the History of the Pleas of the Crown, 633, Sir Matthew Hale said: “The party ravished may give evidence upon oath, and is in law a competent witness; but the credibility of her testimony, and how far forth she is to be believed, must be left to the jury, and is more or less credible according to the circumstances of fact that concur in that testimony.

“For instance, if the witness be of good fame, if she presently discovered the offense and made pursuit after the offender, showed circumstances and signs of the injury, whereof many are of that nature, that only women are the most proper examiners and inspectors, if the place wherein the fact was done was remote from people, inhabitants, or passengers, if the offender fled for it; these and the like are concurring evidences to give greater probability to her testimony, when proved by others as well as herself.

“But on the other side, if she concealed the injury for any considerable time after she had opportunity to complain, if the place where the fact was supposed to be committed were near to inhabitants, or common recourse or passage of passengers, and she made no outcry when the fact was supposed to be done, when and where it is probable she might be heard by others; these and the like circumstances carry a strong presumption that her testimony is false or feigned.” See East’s Pleas of the Crown, 445; 4 Bl. Com., 214. The principle crystallized in Hale’s statement has received the approval of eminent jurists; but the words “strong presumption” must not be accepted as implying a rule or presumption of law, but merely an inference of fact. The origin of the rule admitting evidence of the woman’s timely disclosure or failure to complain is involved in doubt. By some the admission of such evidence is said to be a survival of the practice which prevailed in early times of receiving previous statements of a witness not under oath for the purpose of corroboration; and by others, a perverted survival of the rule which required the injured woman to make hue and cry. The latter custom is referred to by Bracton, fol. 147: “When, therefore, a virgin has been so deflowered and overpowered, . . . forthwith and whilst the act is fresh, she ought to repair with hue and cry to the neighboring vills, and there display to honest men the injury done to her, the blood, and her dress stained with blood, and the tearing of her dress; and so she ought to go to the provost of the hundred and to the sergeant of the lord, the king, and to the coroners, and to the viscount.” Whatever the origin of the rule, the best of judges in ancient and modern times concur in saying that the woman’s conduct is relevant in determining the question of her consent. Evidence that she made outcry tends to show non-consent, and the want of it is a circumstance to be considered in favor of the accused. Underhill on Cr. Ev., 470, sec. 411; S. v. Peter, 53 N. C., 21. In Peter’s case, Pearson, C. J., expressed the idea in the following language: “The fact that the witness Narcissa did not make known or complain of the outrage which had been perpetrated on her for two weeks was presented to tbe jury by bis Honor as a circumstance wbicb affected ber credibility. Tbis portion of tbe charge is excepted to on tbe ground tbat be ought to have gone further and told tbe jury tbat ber not making an earlier disclosure raised a presumption of falsehood, to be acted on by tbe jury in tbe absence of any proof to rebut it.

“It is not a rule of law tbat silence, under such circumstances, raises a presumption tbat tbe witness has sworn falsely. Tbe passages in tbe books to wbicb reference was made on tbe argument use tbe word ‘presumption,’ not as a rule of law, but as inference of fact, and treat of silence as a circumstance tending strongly to impeach tbe credibility of tbe witness, on tbe ground tbat a forcible violation of ber person so outrages tbe female instinct tbat a woman not only will make an outcry for aid at tbe time, but will instantly and involuntarily, after its perpetration, seek some one to whom she can make known tbe injury and give vent to ber feelings. Tbe want of tbis demonstration of feeling or ‘involuntary outburst’ is treated of as a circumstance tending to show consent on ber part; but it is nowhere held tbat tbis female instinct is so strong and unerring as to have been made tbe foundation of a rule of law, as distinguished from a rule in respect to evidence and tbe weight to wbicb it is entitled, wbicb is a matter for tbe jury.” S. v. Smith, 138 N. C., 700.

While tbe silence or delay of tbe prosecutrix in complaining may be urged to lessen tbe force or credibility of ber evidence, it is equally unquestionable tbat ber delay may be explained or excused by proof of sufficient cause therefor. Among causes tbat have been held to excuse such delay Underbill mentions shame, threats of tbe prisoner, and fear of injury. Or. Ev., 470. If in tbe estimation of tbe jury tbe evidence reconciles tbe woman’s silence with ber nonconsent — i. shows sufficient explanation or excuse — ber failure to make complaint should not be deemed a “suspicious circumstance” tending to show tbat she consented to tbe act. Tbis we understand to be tbe sum and substance of bis Honor’s modified instruction.

Tbe evidence discloses circumstances tbat are uncommon, if not singular in their kind. Tbe prosecutrix made no outcry, gave no alarm, and uttered no complaint for more than three days; two hours after tbe occurrence tbe prisoner was at work in a field near ber borne; on Saturday be saw tbe prosecutrix, ber husband, and bis mother, and on Sunday went with ber husband to Belbaven. If tbe theory of tbe State be accepted, tbe prosecutrix, resisting to tbe utmost, tried to make outcry and could not; afterward she suffered tbe torture of shame and tbe fear of death; she was physically injured; and tbe prisoner practically admitted bis guilt. The courts do not presume to reconcile conflicts or inconsistencies of testimony in a judicial proceeding. Tbis duty must be discharged by another agency of the law. Advocates of the jury system who admit that it does not merit all the encomiums it has received, are pronounced in the conviction that wherever the element of a moral doubt enters into the consideration of a case, it can best be weighed on the balance of probabilities by a proper tribunal. Concerned with the law, the courts are not inclined to disturb this prevailing assurance.

Owing to the gravity of the offense with which the prisoner is charged, we have examined all the exceptions in the record, in favorem vitae, and find

No error.