*1 IN THE SUPREME [270 416 v. Britt. nominal receiving than expectation no of more has He defendant. the his of for little chance success services, and for his remuneration exceptions and motions make technical to required is client. He appeals frequently pursue merit and are without knows is The record has much lose. He hopeless. be knows to that he is yet, attorney and the case, defense possible of barren post-conviction in almost unlimited that likelihood the faced with ungrateful client by his shortly charged be will hearings he of the and to other members inefficiency. him, To and dereliction conditions, hopeless service under possible the best render who Bar gratitude. hereby is It appreciation and owe and this Court public the extended. and expressed tried, shown, far has for reason so defendant, who no the As to cause, we can man without fellow his executed and
convicted —give a fair trial. he would what he has say No error. BRITT. v. JERRY WYNN
STATE 1967.) May, (Filed 24 Battery 4— and § Assault 1. assault, battery always battery and is a an where there includes A another, directly indirectly, person force, of application of battery. is an assault Battery 14— § 2. Assault prosecutrix year old resisted amorous advances the 16 Evidence man, whereupon defendant, defendant her on a 26 hit screamed, slapped ver- she held sufficient to sustain her when neck and upon female, being guilt an a a male assault of defendant’s dict years age, prose- person defendant’s contention that over prior resisting him, encouraged in his advances is no cutrix defense, assault, principle person, aof constructive where go fear, gone, through she would forced to where not otherwise is have right be, inapposite. place had a or leave 106— Law § Criminal 3. verdict, is direct Wihere evidence before no circumstantial failure of the there court to sufficiency jury may a reasonable doubt arise out of the in- prejudicial, having held will not be of the the court correctly doubt and defined the burden throughout State, trial, and remained prove was on beyond element each essential reasonable doubt. TERM, SPRING N.C.]
State v. Bbitt. *2 4. Criminal Law 131—§ argument The solicitor entitled to contend in his to the that graver evidence would warrant an indictment for a and that de- charged offense, fendant was fortunate that he was with a lesser and to contend that defendant was so intoxicated that soon he after committed prosecutrix passed out, the assault on he when such contentions arise on repeat and it is not error for the court to such contentions jury. of the State in its
Shabp, concurring. J.,
Bobbitt, J., joins concurring opinion. in Appeal by defendant from Clark, S.J., Regular October 1966 Criminal Term, Superior Court. Bladen The defendant was with assault with intent- to commit on August Sue on 14 Johnson 1966. He was convicted of an (12)
assault on a female, received sentence not less than twelve eighteen (18) months nor more than months in prison, appealed. and show that the The tended to defendant and evidence for ha,d place, known each other Johnson at the same for a Sue worked August prior to When month and had had one date she movie, went to a afternoon, she and the de- finished her work that go riding her to him, later in and asked with fendant came places engaged where they at one or two They stopped she did. spot to a where the kissing and then came secluded defendant at- liberties. She said tempted serious that “he started to take more belong his hands where he didn’t and getting putting to, fresh and gotten liquor The defendant and slap would at him.” some I finally point until he consumed drinking at this the entire was bottle. — midnight began get rough again “he testified that around Sue they belong. where didn’t He tried to un- trying put his hands pushed me down then,” and “he on the seat and my blouse button try get up ... I would and he pick would at me would he back, pushed pulled up my me skirt and me back. When push my my pants . He tore or pulled clothes pull wouldn’t off I four five times. me screamed or He hit when aside. ... I I them up, last he told me to my The time shut screamed, on neck. — strength. with his hit me He hit it slapped me. He didn’t was got testified that defendant enough.” further her and She hard but did not her succeed. She attempted have relations con- but home, her the car take would not start, to ask him to tinued daybreak, it until about when they stayed an hour, left, to return within Sue Upon his failure went to a left. Upon seeing a ride home. mother, her nearby house obtained she department sheriff’s happened, and the what had was noti- her told ,[270 IN THE SUPREME 418- v. Bkitt. mother, and told her officers what she had repeated to the fied. She who testified E. Bennett day was examined Dr. C. later was it but bruising hymen that he found contusion sufficiently rup- penetrated she had not been torn, and that hymen. ture the from was torn torn, was the lace testified that her skirt
Sue pants. slip was on her and that blood underpants, garments were exhibited this, and the Her mother corroborated pants by had washed Johnson testified the trial. Mrs. blood at the time they did not show the mistake, and therefore the trial. the de- years age time, at the was sixteen Sue Johnson: *3 divorced, father of twenties, and the
fendant was in his late children. two judgment pronoun- upon evidence, and offered no
The defendant gave appeal. notice of ced by Barrington, A. Singleton Carl & Barrington, Collier
Nance, appellant. Jr., for defendant Rich, Jr., Millard B. Assistant General; Bruton, Attorney
T. W. General, the State. Attorney for portion of his devotes a substantial The defendant J. Pless, denied his motion because the Court exceptions taken to the
brief plaintiff’s close of the evidence nonsuit at judgment as of for was sufficient evi of all the evidence. Whether and at the end an assault with the intent guilty of sustain a verdict of dence to defendant was convicted relevant, is not now since the commit being a male female, an assault on a a misdemeanor: only of given in (18) years age. of The evidence eighteen person more than the defendant hit the sixteen of facts shows the statement slapped her when she screamed. girl her neck and that argues that an assault. The defendant course, constitutes This, of leading encouraging position in a of “placed herself Sue amorous now Wynn Britt, into advances defendant, Jerry and further contends that of assault,” to an “none claims amount female, conviction of assault on a to wit: for a required elements prosecuting or menaced the witness threatened go where she would not as to cause her otherwise way a in such right place where she had a to be.” to leave We gone or have battery in the law of assault. A al requirement such of no know ap is an assault, whereby an assault force is ways includes another. State v. Sud person to the indirectly, directly or plied, Probably 828. the most succinct defi- derth, 184 N.C. 753, 114 S.E. TERM, SPRING N.C.]
State v. Bbitt.
attempt, by violence,
nition is “an assault
is an intentional
to do
injury
person
Davis,
State v.
The defendant also takes in that it omits insufficiency statement that a may reasonable doubt arise out of the “ of the evidence. However, ‘beyond the Court said a reasonable doubt' . does not mean a vain, imaginary doubt, or fanciful but it means sane, rational doubt. It you, means that fully entirely must be satisfied or convinced of the truth of the charge against this And also, proof defendant.” “the burden of is on beginning State remains on the from to the end any stage of the trial. It does not shift at of the trial to the defend- ant, required disprove and the defendant is not case; the State’s and the if State must fail from the whole of you, jury, are not beyond satisfied a reasonable doubt that the defend- guilty every ant element the offense with which he is charged.” Hammonds,
In v. 241 N.C. 133, Denny, J., S.E. 2d said that a C.J., doubt, later definition of reasonable “without add- ing ‘or from lack insufficiency equiv- evidence’ or some expression, alent it is But, error. whether or not such error will be sufficiently prejudicial considered to warrant a new trial will be de- termined the evidence involved. Here the State’s was evidence direct and the verdict. No circumstantial *4 jury, evidence was before the nor could any there have been doubt sufficiency as to the evidence, of the State’s if believed, to warrant a conviction.” a sixteen nearly When child testifies that a man twice world, experienced in age, ways
her the of the takes her to a part country secluded of a slaps road and there her beats gets top holds her down while he of her and attempts to have by sexual relations with force, we hold that the above statement applicable, from the Hammonds case is the State’s evidence “was direct and verdict,” the and that omission was “sufficiently prejudicial to warrant a new trial.” complains
The defendant further in his the Court referred to the State’s contentions that “the only- defendant not committed the crime of assault with intent to rape, but that ac- he tually capital committed the of rape”; and “that he is for- only tunate that he is with assault with intent to commit rape,” and that “he was intoxicated to such an extent that soon after IN THE [270
420 SUPREME v. Brttt. committed, rape, rape actually intent to or this assault with year old sixteen young passed sleep out or and that the went to daylight car until girl stay woods, in had to there in the the Solicitor assume that following morning.” It is reasonable to contentions, such made argument jury in his would have upon the State’s logical naturally of which arise are contentions, the repeating and in them as some State’s Judge committed no error. not convicted of defendant was
It must be recalled that the the defend- subjects by criticized attempted rape, or which are the assault on a female. misdemeanor, to-wit, ant, but of exceptions reveals no sub- A defendant’s full consideration justify another trial. stantial error that would No error. by in result reached concurring: fully I concur
Shabp, J., the case of State majority but I deem its reference to opinion, misleading 133, to be Hammonds, 241 2d 226, v. N.C. 85 S.E. inapplicable the definition rea quotations therefrom to be There gave this case. sonable doubt which the court Indeed, doubt. of reasonable many acceptable are definitions doubt’ in themselves are said, has “The words ‘reasonable Court explanation can be made self-explanatory as about as near 1120, 1137, 625, 631, 132 44 Wilcox, State v. N.C. S.E. of them.” . 269, Phillip, 263, 134 approval in State v 261 N.C. S.E. quoted 386, 2d jury, “‘(B)eyond a doubt’ Judge told the reasonable
Here Clark imaginary fanciful vain, doubt, mean a or but it . does not you, It means that doubt. must be sane, means rational charge against of the truth of the entirely or convinced fully satisfied approved many has been This definition times. State this defendant.” Braxton, 312, 895; 2d Phillip, supra; v. State v. 230 N.C. S.E. Hammonds, v. supra in State the cases collected and see when doubt is It is defined as “a 2d at 138. S.E. growing of, out arising of, out or case” that doubt add “or from lack judge insufficiency not to for the it is error equivalent expression. evidence,” Braxton, or some State v. will such failure “warrant new trial will But whether be supra. involved.” State v. Hammonds, supra *5 determined 2d at 139. 85 S.E. employed doubt court The definition of omission. no error case contains concurring opinion. joins
Bobbitt, J.,