Ervin, J.
Tbe evidence of tbe State was sufficient to warrant a finding that tbe prisoner bad unlawful carnal knowledge of tbe prosecu-trix by force and against her will. Consequently, tbe motions for a compulsory nonsuit under G.S. 15-173 were properly denied.
S. v. Hooks,
228 N.C. 689, 47 S.E. 2d 234;
S. v. Hunt,
223 N.C. 173, 25 S.E. 2d 598;
S. v. Vincent,
222 N.C. 543, 23 S.E. 2d 832;
S. v. Harris,
222 N.C. 157, 22 S.E. 2d 229;
S. v. Johnson,
219 N.C. 757, 14 S.E. 2d 792;
S. v. Lewis,
177 N.C. 555, 98 S.E. 309;
S. v. Lance,
166 N.C. 411, 81 S.E. 1092. Tbe articles of clothing produced at tbe trial by tbe prosecution were rightly received in evidence. They were identified as garments worn by
the
accused and tbe prosecutrix at tbe time named in tbe indictment, and bore tears and stains corroborative of tbe State’s theory of tbe case.
S. v.
Wall,
205 N.C. 659, 172 S.E. 216;
S. v. Fleming,
202 N.C. 512, 163 S.E. 453;
S. v. Westmoreland,
181 N.C. 590, 107 S.E. 438;
S. v. Vann,
162 N.C. 534, 77 S.E. 295. Since tbe evidence indicated that they were voluntary in character, the court did not err in admitting the incriminatory statements made by the prisoner to the officers of the law soon after the alleged crime.
S. v. Thompson,
224 N.C. 661, 32 S.E. 2d 24;
S. v. Wagstaff,
219 N.C. 15, 12 S.E. 2d 657;
S. v. Smith,
213 N.C. 299, 195 S.E. 819;
S. v. Tate,
210 N.C. 613, 188 S.E. 91;
S. v. Edwards,
126 N.C. 1051, 35 S.E. 540. The charge of the judge to the petit jury was noteworthy for accuracy and clarity, and the exception of the accused to it is without merit.
This brings us to a grave question presented by the record: Did the trial court commit error in refusing to give counsel for the defense time to investigate the facts and to procure evidence from Warren County in support of the challenge to the array?
Both the State and Federal Constitutions secure to every man the right to be defended in all criminal prosecutions by counsel whom he selects and retains. N. C. Const., Art. I, sec. 11; U. S. Const., Amend. XIY. This right is not intended to be an empty formality. It would be a futile thing, indeed, to give a person accused of crime a day in court if he is denied a chance to prepare for it, or to guarantee him the right of representation by counsel if his counsel is afforded no opportunity to ascertain the facts or the law of the case. As the Supreme Court of Georgia declared in
Blackman v. State,
76 Ga. 288: “This constitutional privilege would amount to nothing if the counsel for the accused are not allowed sufficient time to prepare his defense; it would be a poor boon indeed. This would be ‘to keep the word of promise to our ear and break it to our hope.’ ” Since the law regards substance rather than form, the constitutional guaranty of the right of counsel contemplates not only that a person charged with crime shall have the privilege of engaging counsel, but also that he and his counsel shall have a reasonable opportunity in the light of all attendant circumstances to investigate, prepare, and present his defense.
S. v. Gibson,
229 N.C. 497, 50 S.E. 2d 520;
S. v. Farrell,
223 N.C. 321, 26 S.E. 2d 322.
Since the prisoner was detained in custody on a capital charge, he necessarily relied on his counsel to look after his defense. The action pended in the Superior Court of Bertie County, and the attorneys for the accused were charged with knowledge that in the ordinary course of law citizens would be summoned from the body of that county to serve as jurors on the trial of the cause. Manifestly, they could not be expected to anticipate or guess that the presiding judge, acting on his own motion and without any notice to them, would enter an order subsequent to the convening of the term at which the case was calendared for trial
calling a special venire from a distant and unfamiliar county to serve as jurors in the cause, notwithstanding the order was authorized by a statute specifying that “upon suggestion made as provided by section 1-84 or on his own motion, the presiding judge, instead of making order of removal, may cause as many jurors as he deems necessary to be summoned from any county in the same judicial district or in an adjoining district by the sheriff or other proper officer thereof, to attend, at such time as the judge designates, and serve as jurors” in any action in the event there are probable grounds to believe that a fair and impartial trial of such action cannot otherwise be obtained. Gr.S. 1-86. Besides, counsel for the accused could not determine the desirability or the propriety of challenging the array until the panel was drawn and its character ascertained. For these reasons, the defense was justifiably unprepared to prove the validity of the challenge to the array when the special veniremen appeared in the Superior Court of Bertie County.
When he lodged his challenge to the array, the prisoner invoked the principle enunciated by repeated decisions of the Supreme Court of the United States that state exclusion of Negroes from grand and petit juries solely because of their race or color denies Negro defendants in criminal cases the equal protection of the laws required by the Fourteenth Amendment to the Federal Constitution.
Brunson v. North Carolina,,
332 U.S. 851, 68 S. Ct. 634, 92 L. Ed. 1132;
Patton v. Mississippi,
332 U.S. 463, 68 S. Ct. 184, 92 L. Ed. 76, 1 A.L.R. 2d 1286;
Akins v. Texas,
325 U.S. 398, 65 S. Ct. 1276, 89 L. Ed. 1692;
Hill v. Texas,
316 U.S. 400, 62 S. Ct. 1159, 86 L. Ed. 1559;
Smith v. Texas,
311 U.S. 128, 61 S. Ct. 164, 85 L. Ed. 84;
Pierre v. Louisiana,
306 U.S. 354, 59 S. Ct. 536, 83 L. Ed. 757;
Hale v. Kentucky,
303 U.S. 613, 58 S. Ct. 753, 82 L. Ed. 1050;
Hollins v. Oklahoma,
295 U.S. 394, 55 S. Ct. 784, 79 L. Ed. 1500;
Norris v. Alabama,
294 U.S. 587, 55 S. Ct. 579, 79 L. Ed. 1074;
Rogers v. Alabama,
192 U.S. 226, 24 S. Ct. 257, 48 L. Ed. 417;
Carter v. Texas,
177 U.S. 442, 20 S. Ct. 687, 44 L. Ed. 839;
Smith v. Mississippi,
162 U.S. 592, 16 S. Ct. 900, 40 L. Ed. 1082;
Gibson v. Mississippi,
162 U.S. 580, 16 S. Ct. 906, 40 L. Ed. 1078;
Bush v. Kentucky,
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Ervin, J.
Tbe evidence of tbe State was sufficient to warrant a finding that tbe prisoner bad unlawful carnal knowledge of tbe prosecu-trix by force and against her will. Consequently, tbe motions for a compulsory nonsuit under G.S. 15-173 were properly denied.
S. v. Hooks,
228 N.C. 689, 47 S.E. 2d 234;
S. v. Hunt,
223 N.C. 173, 25 S.E. 2d 598;
S. v. Vincent,
222 N.C. 543, 23 S.E. 2d 832;
S. v. Harris,
222 N.C. 157, 22 S.E. 2d 229;
S. v. Johnson,
219 N.C. 757, 14 S.E. 2d 792;
S. v. Lewis,
177 N.C. 555, 98 S.E. 309;
S. v. Lance,
166 N.C. 411, 81 S.E. 1092. Tbe articles of clothing produced at tbe trial by tbe prosecution were rightly received in evidence. They were identified as garments worn by
the
accused and tbe prosecutrix at tbe time named in tbe indictment, and bore tears and stains corroborative of tbe State’s theory of tbe case.
S. v.
Wall,
205 N.C. 659, 172 S.E. 216;
S. v. Fleming,
202 N.C. 512, 163 S.E. 453;
S. v. Westmoreland,
181 N.C. 590, 107 S.E. 438;
S. v. Vann,
162 N.C. 534, 77 S.E. 295. Since tbe evidence indicated that they were voluntary in character, the court did not err in admitting the incriminatory statements made by the prisoner to the officers of the law soon after the alleged crime.
S. v. Thompson,
224 N.C. 661, 32 S.E. 2d 24;
S. v. Wagstaff,
219 N.C. 15, 12 S.E. 2d 657;
S. v. Smith,
213 N.C. 299, 195 S.E. 819;
S. v. Tate,
210 N.C. 613, 188 S.E. 91;
S. v. Edwards,
126 N.C. 1051, 35 S.E. 540. The charge of the judge to the petit jury was noteworthy for accuracy and clarity, and the exception of the accused to it is without merit.
This brings us to a grave question presented by the record: Did the trial court commit error in refusing to give counsel for the defense time to investigate the facts and to procure evidence from Warren County in support of the challenge to the array?
Both the State and Federal Constitutions secure to every man the right to be defended in all criminal prosecutions by counsel whom he selects and retains. N. C. Const., Art. I, sec. 11; U. S. Const., Amend. XIY. This right is not intended to be an empty formality. It would be a futile thing, indeed, to give a person accused of crime a day in court if he is denied a chance to prepare for it, or to guarantee him the right of representation by counsel if his counsel is afforded no opportunity to ascertain the facts or the law of the case. As the Supreme Court of Georgia declared in
Blackman v. State,
76 Ga. 288: “This constitutional privilege would amount to nothing if the counsel for the accused are not allowed sufficient time to prepare his defense; it would be a poor boon indeed. This would be ‘to keep the word of promise to our ear and break it to our hope.’ ” Since the law regards substance rather than form, the constitutional guaranty of the right of counsel contemplates not only that a person charged with crime shall have the privilege of engaging counsel, but also that he and his counsel shall have a reasonable opportunity in the light of all attendant circumstances to investigate, prepare, and present his defense.
S. v. Gibson,
229 N.C. 497, 50 S.E. 2d 520;
S. v. Farrell,
223 N.C. 321, 26 S.E. 2d 322.
Since the prisoner was detained in custody on a capital charge, he necessarily relied on his counsel to look after his defense. The action pended in the Superior Court of Bertie County, and the attorneys for the accused were charged with knowledge that in the ordinary course of law citizens would be summoned from the body of that county to serve as jurors on the trial of the cause. Manifestly, they could not be expected to anticipate or guess that the presiding judge, acting on his own motion and without any notice to them, would enter an order subsequent to the convening of the term at which the case was calendared for trial
calling a special venire from a distant and unfamiliar county to serve as jurors in the cause, notwithstanding the order was authorized by a statute specifying that “upon suggestion made as provided by section 1-84 or on his own motion, the presiding judge, instead of making order of removal, may cause as many jurors as he deems necessary to be summoned from any county in the same judicial district or in an adjoining district by the sheriff or other proper officer thereof, to attend, at such time as the judge designates, and serve as jurors” in any action in the event there are probable grounds to believe that a fair and impartial trial of such action cannot otherwise be obtained. Gr.S. 1-86. Besides, counsel for the accused could not determine the desirability or the propriety of challenging the array until the panel was drawn and its character ascertained. For these reasons, the defense was justifiably unprepared to prove the validity of the challenge to the array when the special veniremen appeared in the Superior Court of Bertie County.
When he lodged his challenge to the array, the prisoner invoked the principle enunciated by repeated decisions of the Supreme Court of the United States that state exclusion of Negroes from grand and petit juries solely because of their race or color denies Negro defendants in criminal cases the equal protection of the laws required by the Fourteenth Amendment to the Federal Constitution.
Brunson v. North Carolina,,
332 U.S. 851, 68 S. Ct. 634, 92 L. Ed. 1132;
Patton v. Mississippi,
332 U.S. 463, 68 S. Ct. 184, 92 L. Ed. 76, 1 A.L.R. 2d 1286;
Akins v. Texas,
325 U.S. 398, 65 S. Ct. 1276, 89 L. Ed. 1692;
Hill v. Texas,
316 U.S. 400, 62 S. Ct. 1159, 86 L. Ed. 1559;
Smith v. Texas,
311 U.S. 128, 61 S. Ct. 164, 85 L. Ed. 84;
Pierre v. Louisiana,
306 U.S. 354, 59 S. Ct. 536, 83 L. Ed. 757;
Hale v. Kentucky,
303 U.S. 613, 58 S. Ct. 753, 82 L. Ed. 1050;
Hollins v. Oklahoma,
295 U.S. 394, 55 S. Ct. 784, 79 L. Ed. 1500;
Norris v. Alabama,
294 U.S. 587, 55 S. Ct. 579, 79 L. Ed. 1074;
Rogers v. Alabama,
192 U.S. 226, 24 S. Ct. 257, 48 L. Ed. 417;
Carter v. Texas,
177 U.S. 442, 20 S. Ct. 687, 44 L. Ed. 839;
Smith v. Mississippi,
162 U.S. 592, 16 S. Ct. 900, 40 L. Ed. 1082;
Gibson v. Mississippi,
162 U.S. 580, 16 S. Ct. 906, 40 L. Ed. 1078;
Bush v. Kentucky,
107 U.S. 110, 1 S. Ct. 625, 27 L. Ed. 354;
Neal v. Delaware,
103 U.S. 370, 26 L. Ed. 567;
Ex Parte Virginia,
100 U.S. 339, 25 L. Ed. 676;
Virginia v. Rives,
100 U.S. 321, 25 L. Ed. 670;
Strauder v. West Virginia,
100 U.S. 303, 25 L. Ed. 664. As the text writer ini6 C.J.S., Constitutional Law, section 540, has declared: “This does not mean that a jury must be composed of persons of each race in proportion to their respective numbers as citizens; nor does the equal protection of the laws give a Negro or other person the right to demand that the grand or trial jury, considering his case, shall be composed, wholly or in part, of persons of his own race or color, the only right to which he is entitled being that in the selection of jurors
persons of bis race or color shall not be discriminated against or excluded on tbat account.” Various aspects of tbis question are considered in these North Carolina eases:
S. v. Speller, supra; S. v. Brunson,
229 N.C. 37, 47 S.E. 2d 478;
S. v. Koritz,
227 N.C. 552, 43 S.E. 2d 77,
certiorari
denied 332 U.S. 768, and rehearing denied 332 U.S. 812, 68 S. Ct. 106, 92 L. Ed. 390;
S. v. Henderson,
216 N.C. 99, 3 S.E. 2d 357;
S. v. Walls,
211 N.C. 487, 191 S.E. 232,
certiorari
denied 302 U.S. 635, 58 S. Ot. 18, 82 L. Ed. 494;
S. v. Cooper,
205 N.C. 657, 172 S.E. 199;
S. v. Daniels,
134 N.C. 641, 46 S.E. 743;
S. v. Peoples,
131 N.C. 784, 42 S.E. 2d 814;
S. v. Sloan,
97 N.C. 499, 2 S.E. 666;
Capehart v. Stewart,
80 N.C. 101.
The trial court made findings that the special veniremen were drawn and summoned in accordance with the laws of the State, and that there had been no discrimination against persons of the prisoner’s race in preparing the jury list. These findings were supported by evidence, and ordinarily would he conclusive on appeal in controversies of this nature.
S. v. Walls, supra; S. v. Cooper, supra; S. v. Daniels, supra; S. v. Peoples, supra.
In the case at bar, however, the action of the presiding judge in calling trial jurors from a distant county took the prisoner and his counsel by surprise, and rendered them justifiably unprepared forthwith to sustain by testimony the challenge to the array, which was apparently interposed in good faith and on reasonable grounds.
Attorneys for the defense asked the court, in substance, for time to investigate relevant matters in Warren County, and to secure evidence there to substantiate the validity of the challenge to the array. The court refused this request. By virtue of this ruling, counsel for the prisoner were compelled to resort at random to the special veniremen and to bystanders in the courtroom at Windsor, eighty-two miles from the county seat of Warren County, to sustain the proposition that the Board of Commissioners of Warren County had purposely excluded Negroes from the jury list of Warren County and from the venire in question solely on account of their race or color. Despite the handicap under which they labored, counsel for the defense elicited testimony from their witnesses and from witnesses called to the stand by the State indicating that the case for the State might well have been so weakened, or the ease for the prisoner might well have been so strengthened as to have required contrary findings and an opposite order in respect to the lawfulness of the panel if they had been granted a reasonable time for investigation, preparation, and presentation of the prisoner’s case on the challenge to the array. Thus, the record discloses not only that the prisoner and his attorneys were denied a reasonable opportunity in the light of prevailing conditions to investigate, prepare, and present his defense on the chal
lenge to the array, but also that such denial of such opportunity prejudiced the prisoner’s rights.
The declaration of the Supreme Court of Pennsylvania in
Brown v. Hummel,
6 Pa. State 86, 47 Am. Dec. 431, is apposite. “When the humblest citizen comes into court with the constitution of his country in his hand, we dare not disregard the appeal.” Since it appears from the record that the prisoner has been denied the fundamental right of representation by counsel vouchsafed him by both the State and Federal Constitutions, the conviction and sentence are vacated, and the action is remanded to the Superior Court of Bertie County for a
New trial.