Appellants, both Negroes, were tried on an indictment charging in separate counts (1) rape, (2) assault with intent to ravish, (3) carnal knowledge of a fеmale under 16 (Section 16-80 of the 1952 Code), commonly referred to as statutory rape, and (4) assault and battery of a high and aggravated nature. The jury found them guilty of assault and battery of a high and aggravated nature. Each was sentenced to imprisonment for a term of three years.
The testimony of thе alleged victim, a Negro between the ages of 14 and 16 and in the tenth grade in school, was to the following effect: One of the appellants lived next door to her and the other in the same neighborhood. She knew them well but had never gone out with them. About 4:00 o’clock on Sunday afternoon, October 12, 1958, she and *249 another Negro girl about the same age, started to visit a friend. They were overtaken by appellants in a truck, who stopped and asked if they wanted a ride. When they declined the invitation, appellants said they would “make them ride.” She and her companion started running. Her companion escaped but appellants caught her and forcibly put her in the truck. She commenced screaming. Appellants rolled up the windows of the truck. They drove for some distance until they reached a dirt road in a sparsely settled section where they stopped. Each аppellant forcibly had intercourse with her in the truck while the other remained on the outside and watched. After this was done they threatened to kill hеr if she related what had occurred. Appellants then drove to the home of Frances Butler, a neighbor of the prosecutrix, where they let hеr out.
The testimony of the prosecutrix as to being forcibly placed in the truck by appellants was corroborated by her companion. Frances Butler testified that about 4:30 that afternoon the prosecutrix came to her home crying, with her hair disheveled. Her mother was promptly notified and arrived about 6:00 o’clock. She said that her daughter’s clothes were “all wrinkled up, her hair was tangled up and she was crying.” When asked as to what had happened, her daughter told her of the occurrence.
According to a deputy sheriff of Dorchester County, appellants when arrеsted the following morning readily admitted having assaulted the prosecutrix. The only discrepancy in their version and the testimony given by the prosecutrix was that appellant Arthur Dillon claimed in his confession to the deputy sheriff that after assaulting the prosecutrix he lost his nerve and did not have intercourse with her. A physician who examined the prosecutrix on October 14th, two days after the alleged assault, said he found no bruises or scratches on her body.
The first question for determination is whether the Court erred in refusing to quash the indictment upon the ground that it charged two separate and distinct
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offenses, nаmely, both common-law and statutory rape, It was held in
State v. Whitener,
228 S. C. 244,
It is next claimed that the Court erred in permitting the mother of the prosecutrix to relate the details of the complaint made by her daughter when she arrived at the home of Frances Butler, which was less than two hours after the alleged assault. It is well settled that the fact that the prоsecutrix complained of a rape may be shown in corroboration of her testimony.
State v. Sudduth,
52 S. C. 488,
Error is аssigned in conducting thé preliminary inquiry ás to the voluntariness of the confessions in the presence of the jury. As pointed out in
State v. Chasteen,
228 S. C. 88,
It is claimed that during the taking of the testimony, the Court erred in inquiring of the solicitor whether he had shown that the alleged crime occurred in Dorchester County. No prejudice resulted from this inquiry. The locus of the crime had previоusly been established but apparently the testimony to that effect had escaped the attention of the triál Judge.
There is á further exception to the effect that after the close of the testimony, the Court erred in permitting the State to reopen the case and prove that the prosecutrix was unmarried. During the colloquy in passing on the motion for a directed verdict, the Court indicated that this was an essential fact to be established and permitted the State tb reopen the case and offer evidence on this question. The prdsecutrix then briefly testified that she had never bеen married. After doing so, the Court stated to counsel for appellants that they would be permitted to offer further testimony if they wished. They declined tо do so. It fnay be doubted whether non-marriagé was an essential fact to be proved by the State.
State v. Haddon,
49 S. C. 308,
It is said that appellants were seriously prejudiced by thе conduct of the trial Judge in actively participating in the questioning of witnesses. “A grave responsibility rests upon a trial judge. It is his duty to see to it that justice be done in every case, if it can be done according to law; and, if he thinks that the attorney for either party, either from inadvertence or аny other cause, has failed tc
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ask the witnesses the questions necessary and proper to bring out all the testimony which tends to ascertain the truth of the matter under investigation, we can see no legal objection to his propounding such questions; but, of course, he should do so in a fair and impartial manner, and should not by the form or manner of his questions express or indicate to the jury his opinion as to the facts of the case, or as to the weight or sufficiency of the evidence.”
State v. Anderson,
85 S. C. 229,
After a careful examination of the record, we do not find that the trial Judge exceeded the forеgoing limitations. The questions asked by him did not indicate to the jury any opinion as to the appellants’ guilt or as to the weight of the evidence and could not have resulted in any prejudice.
The remaining exception is to the effect that the Court erred in refusing a motion for a new trial upon the ground that the jury having acquitted appellants on the charges of rape, assault with intent to ravish and statutory rape, a verdict of guilty of assault and battery of a high and aggravated nature under the evidence is illogical and cannot stand. This exception is overruled under the recent case of
State v. Collins,
228 S. C. 537,
Affirmed.