11 S.E.2d 146 | N.C. | 1940
The defendant was tried and convicted upon a bill of indictment charging the seduction of an innocent and virtuous woman under the promise of marriage, C. S., 4339, and from sentence of imprisonment in the State's Prison for a term of five years appealed to the Supreme Court, assigning errors.
The defendant's first three exceptive assignments of error relate to the court's refusal to allow motion for a nonsuit, C. S., 4643, upon the theory that the testimony of the prosecutrix as to some of the essential elements of the offense was unsupported.
The essential elements of the offense are (1) the innocence and virtue of the prosecutrix, (2) the promise of marriage, and (3) intercourse induced by such promise. S. v. McDade,
As to the first element, the innocence and virtue of the prosecutrix, at least two witnesses testified unqualifiedly that the prosecutrix was of good character at the time of the alleged seduction. This is sufficient supporting evidence upon this element of the offense. S. v. Doss,
The fourth exceptive assignment of error relates to a statement made in the course of his argument by counsel for the private prosecution, to which exception was preserved by counsel for defendant as follows: "Look at the defendant. This baby has black hair just like his." If it be conceded that the statement was improper, such impropriety or error was cured and corrected in the general charge when the court said: "The court instructs you not to consider any reference to the defendant's appearance made in the argument of the case. . . ."
"Where counsel oversteps the bounds of legitimate argument, or abuses the privilege of fair debate, and objection is interposed at the time, it must be left, as a general rule, to the sound discretion of the *372
presiding judge as to when he will interfere and correct the abuse, but he must correct it at some time during the trial, and if the impropriety be gross it is the duty of the judge to interfere at once." Stacy, C. J., inS. v. Tucker,
The fifth, sixth, eighth and ninth exceptive assignments of error all assail his Honor's charge relating to evidence supporting the testimony of the prosecutrix required by the statute creating the crime of seduction. We have examined each of these assignments and are of the opinion, and so hold, that they are untenable. His Honor charged that "The statute requires further that the unsupported testimony of the prosecutrix shall not be sufficient to convict. It means that the prosecutrix must be supported by evidence of independent facts and circumstances, added to her testimony and added to her statements as to each of the elements." This is in accord with the decisions of this Court. S. v. Malonee,
The seventh exceptive assignment of error assails the instruction to the jury as to what constitutes a reasonable doubt. The excerpt objected to reads: "The defendant is presumed to be innocent, and this presumption goes with him throughout the entire trial and until the jury is satisfied beyond reasonable doubt of his guilt; not satisfied beyond any doubt, or all doubt, or a vain or fanciful doubt, but rather what that term implies, a reasonable doubt, one based upon common sense and reason, generated by insufficiency of proof." This is in substantial compliance with the decisions of this Court, S. v. Schoolfield,
The tenth exceptive assignment of error is to the refusal of the court to allow motion for a new trial, and, being formal, is disposed of in the discussion of the other assignments.
The eleventh and last assignment of error is to the sentence imposed. This assignment was argued before us with considerable vigor and earnestness. The record discloses that the sentence imposed was the maximum allowed by the statute, five years imprisonment in the State's Prison, and that his Honor immediately after sentence was imposed dictated a letter to the Parole Commissioner wherein he requested that no clemency be extended the prisoner, and directed the solicitor to institute prosecution against the defendant for failure to support his bastard child. It is the contention of the defendant that the maximum punishment allowed by the statute has been exceeded and that Art.
It is well settled in this jurisdiction that a sentence is not excessive, or "cruel or unusual" when within the limits prescribed by the Legislature, S. v. Daniels,
The letter of his Honor to the Parole Commissioner and his instructions to the solicitor are not parts of the sentence imposed, but were simply the exercise of his personal, if not his official, prerogative.
In the record we find
No error.
