188 S.E. 111 | N.C. | 1936
Criminal prosecution, tried upon indictment charging the defendant with rape.
The record discloses that on Monday night, 10 February, 1936, the prosecuting witness, a young white woman, was assaulted and ravished by a colored man, or Negro, near the East Harper Avenue school building in the town of Lenoir.
On the following day, Tuesday, about 1:30 p.m., the defendant and another Negro boy by the name of Marshall Hood, were carried to the home of the prosecutrix for identification: "She said she did not believe either one of them was the one," so testifies the officer, "and as we turned to go, this darky here (defendant) thanked her."
The defendant was then released, but rearrested later that afternoon and carried before the prosecutrix again the next morning. She testifies: "When I got to see him the next morning, I said the minute I saw him `that is him,' without stopping to wait and see. . . . After the officers left with him, I decided Witherspoon was the one that assaulted me. . . . I am sure now that Witherspoon is the man that assaulted me."
The prosecution offered to show by the constable or officer, admittedly not an expert, but who knew the prosecutrix "pretty well," that in his *648 opinion she was "mentally abnormal" or "not a normal girl mentally." Objection; sustained; exception.
Verdict: Guilty.
Judgment: Death by asphyxiation.
Defendant appeals, assigning errors.
In a prosecution for rape, where the question of identity is the principal issue involved, is it competent to impeach the credibility of the prosecuting witness by showing that she is mentally deficient or abnormal? The answer is, Yes. S. v. Ketchey,
The principle is fully illustrated in the case of S. v. Rollins,
Again, in Isler v. Dewey,
We were told on the argument the court's ruling was based upon the belief that a nonexpert could not testify to the poor memory of a witness. The law is otherwise. Harris v. Aycock,
Any witness who has had opportunity of knowing and observing the character of a person, whose memory or mental capacity is assailed or brought in question, may not only depose to the facts he knows, but may also give in evidence his opinion of belief as to the strength of mind of the person under review, founded upon such knowledge and observation, and it is for the jurors to ascribe to his testimony that weight and credibility which the intelligence of the witness, his means of knowledge and observation, and all the circumstances attending his testimony, may in their judgment deserve. Clary v. Clary,
It is conceded that the prosecuting witness is competent to give evidence in the case. S. v. Satterfield,
There are other exceptions appearing on the record worthy of consideration, but as they are not likely to occur on another hearing, we shall not consider them now. The prisoner is entitled to the benefit of the evidence erroneously excluded.
New trial. *650