197 S.E. 611 | N.C. | 1938
Criminal indictment charging defendant with the crime of rape upon one Mrs. Margaret Wilkins. *783
The State offered evidence tending in brief to show that: About four o'clock on the afternoon of 20 November, 1937, while the prosecutrix, a married woman, living with her husband and mother of a child, was walking upon the streets of Winston-Salem, from the home of her mother-in-law to the home of her mother, where her child was visiting, the defendant whom she did not know, met her and asked if she wanted a taxi. She told him no, and passed on. Then, as she proceeded, a block or more away and while walking a nearer way across the colored school grounds, the defendant again met and accosted her, and by threat of violence caused her to enter an automobile parked in nearby street and ride with him to a secluded place out in the country where he ravished her. He brought her back into the city and let her out. On the trip defendant forced her to lie down on the seat with her head in his lap. As she left the automobile she looked at the license number, and then went into a furniture store, a short distance away, where she obtained paper and pencil on which she wrote the license number and kind of automobile. She then went to and told her mother what had happened. Policemen were called. The license number was turned over to them. On Monday, following, the owner of the automobile was arrested, and in consequence of information given by him the defendant was arrested. That afternoon from a group of seven Negro men lined up in police station, the prosecutrix identified the defendant as her assailant. The prosecutrix was highly nervous when she went into the furniture store, and throughout the night. She was examined by a doctor whose testimony tended to corroborate her testimony as to the act.
The defendant denied that he committed or had any knowledge of the crime. Defendant offered evidence tending to establish an alibi, on which he relied.
Verdict: Guilty of the crime of rape as charged.
Judgment: Death by asphyxiation. The record fails to reveal error. Defendant sets forth several assignments of error, to which we advert Seriatim.
(1) Prosecutrix was permitted to testify that she told her mother about the attack. The court admitted the testimony only for the purpose of corroborating the witness, for which purpose it is competent. S. v.Broadway,
(2) In support of his contention that he did not commit the crime, and for the purpose of showing that, if the crime were committed, it *784
was done by another, defendant offered to show that another Negro man, Matthew Simpson, who wanted to marry a Negro girl by whom defendant had a child, had been heard to tell the girl, "If you don't marry me, you won't do anybody else any good. If I marry you I will get Ernest (the defendant) out of the way and he won't know how I done it and you won't." That, thereafter, and on some Saturday afternoon in November, 1937, the prosecutrix was seen on a street in Winston-Salem talking to Simpson, from whom she received a piece of paper, and then walked off. This testimony, upon objection, was properly excluded. It is defendant's contention that Simpson was using prosecutrix "to frame him." If the evidence be accepted, it created only an inference. In S. v. Smith,
(3) On cross-examination, over objection, defendant was asked if he and another were indicted for raping Helen Thompson on 30 October. Later in his testimony defendant admitted, without objection, that he is indicted, has been tried in police court and bound over on charge of raping her.
But in any event such questions on cross-examination are proper under the decisions of this Court. In S. v. Maslin,
(4) On the question of identification, Lieut. Ledwell, a policeman, testified that the prosecutrix walked up the line of men, came back and said, "The one on the end is the man." I says, "Go back and point him out." She walked back up in front of Ernest Howie and says, "There is the man there." Defendant contends there is no evidence tending to show that the above incident occurred in the presence of defendant. The conversation occurred in the same room, not more than ten feet from the line of men. Whether defendant heard the accusation is a matter for the jury. S. v.Wilson,
(5 and 6) These assignments relate to statement by the court of portions of the State's contentions. There is testimony upon which the *785 contentions are fairly based. But, if objectionable, the defendant should have called the matter to the attention of the court at the time so that the court could correct any error. Objection after verdict comes too late.
(7) There is no exception upon which to base this assignment. Assignments 8, 9 and 10 are formal.
(11) Objection is made to the judgment for that it does not show upon its face that the defendant is a male person above the age of responsibility for crime. In the testimony of the witnesses the defendant is referred to as a man. During the trial no contention was made that the defendant was immune from crime upon the grounds of lack of capacity. This is a matter of defense. In the absence of evidence tending to show immunity of defendant, it is unnecessary for the court to advert to it. S. v.Arnold,
Other exceptions not set out in the brief of defendant, appellant, or in support of which no reason or argument is stated or authority cited, will be deemed to be abandoned. Rule of Practice in the Supreme Court No. 28.
Though there is no motion for nonsuit, it is proper to say that the evidence reveals a case for the jury. The court fully, fairly and correctly presented the case to the jury in a charge to which there is no tenable exception. We have considered every exception and find
No error.