State v. Scales
87 S.E.2d 916
N.C.
1955
Check Treatment
DeNNY, J.

The defendant’s second assignment of error is based on the denial of his motion for a change of venue or for a special venire from outside Guilford County. He contends that the publicity this alleged crime had received in the newspapers, over the radio and television stations in Greensboro - and High Point, had prejudiced the minds of the people of Guilford County against him to such an extent that his motion should have been allowed.

A motion for a change of venue or for a special venire from another county, upon the ground that the minds of the residents in the county in which the crime was committed had been influenced against the defendant, is addressed to the sound discretion of the trial court. S. v. Godwin, 216 N.C. 49, 3 S.E. 2d 347; S. v. Lea, 203 N.C. 13, 164 S.E. 737; S. v. Shipman, 202 N.C. 518, 163 S.E. 657; S. v. Wiseman, 178 N.C. 784, 101 S.E. 629; S. v. Plyler, 153 N.C. 630, 69 S.E. 269. Therefore, this assignment of error is overruled.

The defendant assigns as error the refusal of the court below to grant his motion for a bill of particulars.

The defendant was charged with murder in the first degree in the manner and form prescribed by G.S. 15-144. Under such an indictment the State is entitled to introduce evidence that the defendant committed the homicide in the perpetration of, or attempt to perpetrate rape or other felony, and it is sufficient to sustain a charge based upon evidence relative to murder committed in the perpetration of rape, attempt to commit rape or other felony. S. v. Grayson, 239 N.C. 453, *406 80 S.E. 2d 387; S. v. Mays, 225 N.C. 486, 35 S.E. 2d 494; S. v. Fogleman, 204 N.C. 401, 168 S.E. 536.

It is provided in G.S. 15-143, “In all indictments when further information not required to be set out therein is desirable for the better defense of the accused, the court, upon motion, may in its discretion, require the solicitor to furnish a bill of particulars of such matters.”

In our opinion the defendant has in no way been prejudiced by the denial of his motion since his statements to the officers as to how, when, and under what circumstances he killed the deceased were in accord with the theory of the trial in the court below. There was no variance between the allegata and the probata. S. v. Grayson, supra. Moreover, the statute which provides that a motion for a bill of particulars may be granted leaves it in the discretion of the trial court as to whether or not such motion should be granted. S. v. Wadford, 194 N.C. 336, 139 S.E. 608. The ruling of the court below will be sustained.

Assignments of error Nos. 17 through 23A are directed to the refusal of the trial court to permit an expert psychiatrist and witness for the defendant to testify to the effect that the defendant was a man of low mentality. Low mentality does not mean that a man is insane or unable to distinguish between right and wrong. Furthermore, the defendant did not plead insanity or mental irresponsibility. Neither did he offer any evidence to the effect that he did not know the difference between right and wrong at the time he committed the alleged crime, which is the test of responsibility of a person charged with a criminal offense. S. v. Shackleford, 232 N.C. 299, 59 S.E. 2d 825.

In S. v. Jenkins, 208 N.C. 740, 182 S.E. 324, Stacy, C.J., in considering a similar assignment of error, said: “The only testimony offered by the defendant to support his plea of insanity was that of several witnesses who would have testified, if permitted to do so, that the defendant was a man of low mentality. The exclusion of this evidence is the principal question presented by the appeal. There was no error in its exclusion. S. v. Vernon, ante, 340. Low mentality is not the test of insanity. S. v. Spivey, 132 N.C. 989, 43 S.E. 475. He who knows the right and still the wrong pursues is amenable to the criminal law. S. v. Potts, 100 N.C. 457, 6 S.E. 657. We are aware of the criticism of this standard by some psychiatrists and others. Nevertheless, the critics have offered nothing better.” These assignments of error are overruled.

Assignment of error No. 25 is based on the defendant’s exception to the failure of the court to charge the jury as to murder in the second degree and manslaughter.

The defendant contends that it is only wdiere all the evidence tends to show that the homicide was committed in the perpetration or *407 attempted perpetration of a felony that the court may instruct the jury to return a verdict of guilty of murder in the first degree, or not guilty, citing S. v. Perry, 209 N.C. 604, 184 S.E. 545, in which case there was no evidence whatever to support the view that the homicide was committed in the perpetration or attempt to perpetrate a felony as described in G.S. 14-17.

The defendant likewise contends there is no evidence in this case to support the view that the murder was committed in the perpetration or attempt to perpetrate rape. He admitted an intent to have sexual relations with the deceased, and that he said something to her about sex, but contends there is no evidence whatever to show that he intended to gratify his passion upon the deceased at all events, no matter what resistance she might offer, or that he attempted to do so. We do not so interpret the record. When he said something about sex to the deceased, she became frightened and ran into the kitchen of her home. He did not desist, but followed her. Why did he follow her? His admitted purpose was to have sexual relations with her, and the manner in which her underclothing was torn and rolled up above her thighs and her body left nude below the waist, tends to show an attempt to rape the deceased and such evidence was sufficient to support the charge as given. The fact that this wife and mother put up such a terrific struggle and sacrificed her life rather than yield her body to the embrace of her assailant, and thereby prevented him from accomplishing his purpose, is not susceptible of the construction the defendant would have us put upon it when considered in light of all the evidence adduced in the trial below.

We have carefully examined the remaining exceptions and assignments of error and in our opinion they present no prejudicial error.

The defendant has been represented by able counsel who have presented their cause with commendable zeal. But the jury accepted the State’s theory of the case and the evidence supports the verdict. The trial was in all respects fairly conducted by a competent and experienced judge, and in our opinion there is no legal ground to complain of the result.

No error.