HOKE and WALKER, J. J., dissenting.
Exception 1 cannot be sustained. Statements made to an officer are not incompetent merely because the defendant is at the time in custody or in jail, when they are made without threat or inducement. S. v. Jones,145 N.C. 466; S. v. Bohanon, 142 N.C. 695; S. v. Horner, 139 N.C. 603; S.v. Exum, 138 N.C. 600.
Exception 2. It was not error for the court to refuse to recite a long statement of contentions prepared by prisoner's counsel, when the court stated fully the contentions which were supported by the testimony. If the court had failed to state any particular contention supported by evidence, counsel should have called it to the attention of the court, but
it was not called on to repeat the argument of counsel for the prisoner or in the particular manner and with the inferences which his counsel desired. Counsel could do that in his speech.
Exception 3. The prisoner requested the court to charge: "This is an indictment for rape, which involves an assault, and under the law of the State there are five verdicts that may be returned under this indictment: (1) Rape; (2) Assault with intent to commit rape; (3) Assault with deadly weapon; (4) Simple assault, and (5) Not guilty, as the jury may find; but no verdict of guilty of any offense can be rendered till you are satisfied from the evidence of the guilt of the defendant beyond a reasonable doubt."
The case states that the charge as asked "was given, except (413) that the third and fourth were omitted and instruction touching assault on a woman by a man or boy above the age of 18 years was substituted." Laws 1911, ch. 193, enacts that assault by a man or boy over 18, upon a woman, shall be added to the proviso in Revisal, 3620. This makes the punishment in such cases greater than other simple assaults, and as the prisoner testified that he was 22 years of age, the substitution was proper. The court therefore instructed the jury that they could return a verdict of rape, or of assault with intent to commit rape, or of assault by a man over 18 years of age upon a woman, or of not guilty.
The omission to charge that the prisoner could be convicted of an assault with a deadly weapon cannot be complained of by him, for there was no testimony of such assault. He testified that he did not make any assault with a deadly weapon, and the prosecutrix did not testify to the contrary. Both said he laid the gun down.
The jury refused to find the prisoner not guilty, and also refused to find him guilty of the simple assault upon a woman, or of the assault with intent to commit rape, but guilty of the capital felony. It could not be prejudicial that their attention was not called to the prayer that they might find him guilty of an assault with a deadly weapon, when there had been no evidence of such assault. The prayer was defective, and in such case the court can disregard it altogether.
That part of the charge presented in exception 6 is supported by S. v.Monds, 130 N.C. 697; S. v. Hargrove, 65 N.C. 466; S. v. Starkey, 63 N.C. 7, and S. v. Hodges, 61 N.C. 231.
Exceptions 7, 8, and 9, as to the instructions as to the testimony of the prisoner himself and of his relatives, testifying in his behalf, cannot be sustained, as the charge was in accordance with S. v. Fogleman,164 N.C. 461; S. v. Byers, 100 N.C. 512, and cases cited. The court told the jury that notwithstanding the personal interest of the defendant
and of his relatives, the jury could consider their testimony, and if the jury "believed them to be credible witnesses, they should give to their testimony the same weight as that of other witnesses."
(414) The court also charged the jury: "If the jury under the law and the evidence should find the prisoner guilty of rape, as charged, they will not consider or pass upon the question of his guilt of any lesser offense. But if they should not find him guilty of rape, then the jury will consider the question whether or not he be guilty of an assault with intent to commit rape," etc. The exception of the prisoner to this charge is also without merit. It was proper that the jury should consider the charge in the indictment, and if they failed to find the prisoner guilty as therein charged, then to pass on to the lesser degree of the same offense. Revisal, 3268.
The prisoner, a negro man 22 years old, of unusually strong and lusty frame, according to his own evidence, is indicted for rape upon a white woman, Mrs. Carolina Crook, a widow 42 years old. Her husband died two years ago, leaving her four children to support, and she having lost by her necessities the little home which her husband left her, had moved to a rented place at a retired and unprotected spot, doing doubtless the best she could. She testified that she had a considerable struggle to keep the rent on it paid. She gave a straight and pitiful story of this negro man's coming to her place, making improper proposals and of being refused, assaulting her, running her little girl out of the house, throwing her down, beating her and committing the rape. No one lived in sight of the house, and there is no public road. There was much corroboration of her evidence.
John Gildon testified that when they got to the house Mrs. Crook came up from under the floor with blood on her hair, face, and bosom. We need not go through all the repulsive and shocking testimony, for certainly this condition of the woman, of which she still showed pitiful signs on her face and bosom at the trial, did not tend in any way to show that she had ever been willing to the embraces of the negro man, as he testified.
It is true, the statute permits that under an indictment for murder or rape the prisoner can be convicted of an assault, but that is permission to the jury to avoid the necessity of a new trial for the lesser offense. It does not require the jury to find the defendant guilty of the lesser offense when there is full evidence to satisfy them, as it did (415) satisfy them in this case, beyond all reasonable doubt, that the prisoner was guilty of the rape charged. She was a poor widow deprived of the protection of her husband and of the little home left her, endeavoring to support her children and forced to live in this unprotected
spot, a distance from the public road, and therefore at the mercy of this negro man animated with such impulses as the jury have found. There was evidence that the character of Mrs. Crook and of all her witnesses was good, and there is not a syllable of evidence as to her bad character, save only from the prisoner himself. There was evidence that he was a man of bad character, and he admitted that he had served sentences for perjury and other offenses.
It has been repeatedly held that the judge upon a proper state of facts can tell the jury that if they believe the evidence they can find the prisoner guilty of murder or nothing. It would have been no error to have so charged on this occasion.
If the testimony of the woman was believed, corroborated as to many points by witnesses who proved a good character, he was guilty of a most brutal and shocking rape upon an unprotected white woman. His testimony that she had consented to his embraces was wholly unsupported.
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HOKE and WALKER, J. J., dissenting.
Exception 1 cannot be sustained. Statements made to an officer are not incompetent merely because the defendant is at the time in custody or in jail, when they are made without threat or inducement. S. v. Jones,145 N.C. 466; S. v. Bohanon, 142 N.C. 695; S. v. Horner, 139 N.C. 603; S.v. Exum, 138 N.C. 600.
Exception 2. It was not error for the court to refuse to recite a long statement of contentions prepared by prisoner's counsel, when the court stated fully the contentions which were supported by the testimony. If the court had failed to state any particular contention supported by evidence, counsel should have called it to the attention of the court, but
it was not called on to repeat the argument of counsel for the prisoner or in the particular manner and with the inferences which his counsel desired. Counsel could do that in his speech.
Exception 3. The prisoner requested the court to charge: "This is an indictment for rape, which involves an assault, and under the law of the State there are five verdicts that may be returned under this indictment: (1) Rape; (2) Assault with intent to commit rape; (3) Assault with deadly weapon; (4) Simple assault, and (5) Not guilty, as the jury may find; but no verdict of guilty of any offense can be rendered till you are satisfied from the evidence of the guilt of the defendant beyond a reasonable doubt."
The case states that the charge as asked "was given, except (413) that the third and fourth were omitted and instruction touching assault on a woman by a man or boy above the age of 18 years was substituted." Laws 1911, ch. 193, enacts that assault by a man or boy over 18, upon a woman, shall be added to the proviso in Revisal, 3620. This makes the punishment in such cases greater than other simple assaults, and as the prisoner testified that he was 22 years of age, the substitution was proper. The court therefore instructed the jury that they could return a verdict of rape, or of assault with intent to commit rape, or of assault by a man over 18 years of age upon a woman, or of not guilty.
The omission to charge that the prisoner could be convicted of an assault with a deadly weapon cannot be complained of by him, for there was no testimony of such assault. He testified that he did not make any assault with a deadly weapon, and the prosecutrix did not testify to the contrary. Both said he laid the gun down.
The jury refused to find the prisoner not guilty, and also refused to find him guilty of the simple assault upon a woman, or of the assault with intent to commit rape, but guilty of the capital felony. It could not be prejudicial that their attention was not called to the prayer that they might find him guilty of an assault with a deadly weapon, when there had been no evidence of such assault. The prayer was defective, and in such case the court can disregard it altogether.
That part of the charge presented in exception 6 is supported by S. v.Monds, 130 N.C. 697; S. v. Hargrove, 65 N.C. 466; S. v. Starkey, 63 N.C. 7, and S. v. Hodges, 61 N.C. 231.
Exceptions 7, 8, and 9, as to the instructions as to the testimony of the prisoner himself and of his relatives, testifying in his behalf, cannot be sustained, as the charge was in accordance with S. v. Fogleman,164 N.C. 461; S. v. Byers, 100 N.C. 512, and cases cited. The court told the jury that notwithstanding the personal interest of the defendant
and of his relatives, the jury could consider their testimony, and if the jury "believed them to be credible witnesses, they should give to their testimony the same weight as that of other witnesses."
(414) The court also charged the jury: "If the jury under the law and the evidence should find the prisoner guilty of rape, as charged, they will not consider or pass upon the question of his guilt of any lesser offense. But if they should not find him guilty of rape, then the jury will consider the question whether or not he be guilty of an assault with intent to commit rape," etc. The exception of the prisoner to this charge is also without merit. It was proper that the jury should consider the charge in the indictment, and if they failed to find the prisoner guilty as therein charged, then to pass on to the lesser degree of the same offense. Revisal, 3268.
The prisoner, a negro man 22 years old, of unusually strong and lusty frame, according to his own evidence, is indicted for rape upon a white woman, Mrs. Carolina Crook, a widow 42 years old. Her husband died two years ago, leaving her four children to support, and she having lost by her necessities the little home which her husband left her, had moved to a rented place at a retired and unprotected spot, doing doubtless the best she could. She testified that she had a considerable struggle to keep the rent on it paid. She gave a straight and pitiful story of this negro man's coming to her place, making improper proposals and of being refused, assaulting her, running her little girl out of the house, throwing her down, beating her and committing the rape. No one lived in sight of the house, and there is no public road. There was much corroboration of her evidence.
John Gildon testified that when they got to the house Mrs. Crook came up from under the floor with blood on her hair, face, and bosom. We need not go through all the repulsive and shocking testimony, for certainly this condition of the woman, of which she still showed pitiful signs on her face and bosom at the trial, did not tend in any way to show that she had ever been willing to the embraces of the negro man, as he testified.
It is true, the statute permits that under an indictment for murder or rape the prisoner can be convicted of an assault, but that is permission to the jury to avoid the necessity of a new trial for the lesser offense. It does not require the jury to find the defendant guilty of the lesser offense when there is full evidence to satisfy them, as it did (415) satisfy them in this case, beyond all reasonable doubt, that the prisoner was guilty of the rape charged. She was a poor widow deprived of the protection of her husband and of the little home left her, endeavoring to support her children and forced to live in this unprotected
spot, a distance from the public road, and therefore at the mercy of this negro man animated with such impulses as the jury have found. There was evidence that the character of Mrs. Crook and of all her witnesses was good, and there is not a syllable of evidence as to her bad character, save only from the prisoner himself. There was evidence that he was a man of bad character, and he admitted that he had served sentences for perjury and other offenses.
It has been repeatedly held that the judge upon a proper state of facts can tell the jury that if they believe the evidence they can find the prisoner guilty of murder or nothing. It would have been no error to have so charged on this occasion.
If the testimony of the woman was believed, corroborated as to many points by witnesses who proved a good character, he was guilty of a most brutal and shocking rape upon an unprotected white woman. His testimony that she had consented to his embraces was wholly unsupported. Her bloody and bruised condition when the neighbors came up, her being found under the floor, her own testimony, the natural repugnance of a decent white woman to such intercourse, naturally outweighed with the jury the unsupported and most improbable testimony of the prisoner. There could no prejudice accrue to the prisoner from the court not charging that the jury could convict of assault with a deadly weapon, for there was no testimony from her that he had assaulted her with the gun, and the prisoner testified that he did not assault her at all, but that she hurt herself by falling against a chair. There can be no error in not charging that they could convict him of simple assault, because under the law as it now stands, Laws 1913, ch. 193, there can be no simple assault in such a case as this, because when there is an assault by a man or a boy over 18 years old upon a woman it is a different offense and punishable like an assault with a deadly weapon, and the judge charged exactly as the statute required. She proved by herself and corroborating witnesses that he was guilty of the (416) highest crime — that of rape. If there had been any evidence of an assault with the gun, it is well settled by our decisions, and as a matter of common sense it is necessary in order that the courts may maintain public respect, that new trials shall not be granted for matters which, even if technically errors, could not reasonably change the result.
It is impossible to read this evidence and have any doubt that if the court had charged as the prisoner asked, the jury should have returned a verdict of rape as they did, if they believed the overwhelming weight of the testimony, and if they did not, they should have acquitted the prisoner altogether, for he testified not only that he did not assault her with a gun, but that he did not assault her at all, and that her bloody
and bruised condition was due to the fact that she assaulted him, and that he acted — a strong, able-bodied, vigorous negro man, 22 years old — purely in self-defense, and that she hurt herself. The jury did not believe him, and no one can suppose that any jury could be impaneled that would believe his version of self-defense. It was only by the quick use of automobiles that the prisoner was carried over the county line to safety in jail elsewhere. At the trial the public, in assured confidence that the law would be administered by twelve intelligent, honest men and an upright judge, refrained from all demonstration, though the woman's bruised and beaten countenance, as appears by the record, still bore the marks of the violence inflicted upon her feeble frame by this prisoner and corroborated the extreme energy with which the prisoner used his privilege of self-defense — if it was to be believed.
The prosecuting witness was poor and in humble circumstances, with a dependent family of four children — a widow living in an unprotected situation; but she was entitled to the protection of the laws of her country. The jury believed her statement. They did not believe that the prisoner had done nothing more than defend himself. If they had believed him, their verdict would have been "Not guilty."
It is a pitiful tale, calculated to arouse every feeling of humanity and of justice. The prisoner had a fair, full, and impartial trial at the hands of a jury to none of whom he objected, and under the (417) guidance of an intelligent, just judge. No error appears on this record, and if there had been any, none which could reasonably affect the result.
The testimony of the prisoner that he had had previous sexual intercourse with the prosecutrix was utterly without corroboration, and unless this was true he was merely adding to the terrible offense of which the jury found him guilty, in attempting to destroy the good character she proved by her neighbors. Her character was not impeached by any witness. There was not only testimony of the prisoner's bad character, but, as already stated, he admitted on the stand that he had served a sentence for perjury and that he had been imprisoned and on the roads for other offenses. The evidence of the prosecutrix, in indignant denial of the charge of improper conduct, was uncontradicted by any other testimony than that of the prisoner. Even the colored woman who was summoned by the prisoner testified that she had never seen any improper conduct on the part of Mrs. Crook.
The evidence for the State was clear, direct, corroborated, and overwhelming; that for the defense was the uncorroborated testimony of the prisoner (who admitted he was a perjurer and a former convict), that the defenseless woman of a different race had been his paramour; that
he beat her up in "self-defense," or, rather, that she bloodied and bruised herself in assaulting him. The jury simply did not believe him.
No error.