*1 IN THE COURT SUPREME dissenting opinion in his imposed the reasons stated for Williams, 422, 439, relating 8 of the effect of Section than those other Laws. Chapter 1201 of the 1973 Session CAROLINA v. ERNEST JOHN VINSON OF NORTH STATE
48No. (Piled 1975) 6 June 29; 135; Jury of § exclusion § Law Criminal Law 7— § 1. Constitutional punishment juror opposed capital excusing err in for cause in a case did not dire The trial court no circum- voir examination that under who on her stated regardless she return of the evidence would verdict and stances guilty imposition penalty. the death if meant it — — by deputy jurors Jury prospective names drawn sheriff 2. 5—§ begun jury anew selection personally, Although requirement the clerk of court there for is drawing deputy clerk, through make the random an assistant or or of the interrogation concerning panel on names of those illegal drawing jurors such so as to render fitness to serve as their brought by else, to the attention of the trial someone when it by deputy sheriff, the been drawn names had that some court starting nullifying proceedings and anew err did not court returning names of the nine or from which drawn the to the hat box discarding accepted by sides, already jurors jurors both the names all challenged successfully by giving party, already either challenges, peremptory nine the State defendant fourteen and regard (a) (b), without allowed G.S. maximum peremptory may challenges or have exer- either the State cised theretofore. challenges Jury § 3. 7— shown, Challenges limit cause is while cause are without may challenges peremptory within the limits allowed be exercised law. jurors Jury § 4. 6— examination examining jurors is counsel a wide latitude allowed While dire, questions within sound discretion the form of voir the court. — jurors hypothetical questions prospective Jury § 5. 6— examination of jurors, hypothetical On the voir dire examination containing confusing phrased be so as to (ambiguous improper inadequate are and should of the law incorrect not statements allowed. SPRING TERM 1975 State Vinson *2 — Jury prospective jurors 6. 6— examination of § verdict under certain facts permit question jurors prospective The court should not counsel to they they render, as to the kind of verdict would or how would be in- given vote, to a clined under state of facts. — Jury prospective jurors unsupported assumption 7. 6—§ examination of —.subquestions rape excluding question The trial court in a case did not err in a prospective jurors assumption unsupported to that which was based on the “everyone capital punishment on the favor is in of and is punishment favor subquestions for this offense” and which contained two dealing points inquiry. with different — Jury prospective jurors 6— mitigating 8. examination of § facts death penalty properly question seeking The trial court disallowed a to elicit concerning “any” information or circumstances set of facts which mitigate juror’s rape penalty would a views on the death in a case. — — Jury prospective jurors insanity 6— 9. examination § uncon- n sciousness properly questions prospective jurors The trial court disallowed to relating control his hypothetical circumstances in which defendant “couldn’t actions,” “was not conscious of his act” or “did not inten- tionally wilfully manifestly commit the act” since the were confusing inadequate and contained statements of the law. — Jury jurors repetitious questions 10. 6— examination § properly repetitious questions The trial court limited further prospective juror concerning hypothetical insanity defense of ques- the. where he “didn’t indicated know how to answer tion.” — — 11. Criminal Law 89— §§ statements to corroboration detective “rape” word use of testimony concerning rape A detective’s what a victim told him during investigation competent of the incident was to corroborate testimony previous victim; furthermore, the victim’s use during “rape” investigation of the word opinion did not constitute an question on a of law. photographic 12. Criminal Law 66—§ identification —failure hold voir dire rape admitting in a trial court case did not err in without a testimony voir dire examination the of a detective the vic- photograph prior tim’s identification the of defendant trial where already victim direct examination made an in-court identifi- gave cation of of the voir dire explicit testimony defendant and on cross-examination pretrial objection identification, request all without for a examination, nothing suggesting and there is in the record procedure pretrial impermissibly suggestive. was IN THE SUPREME COURT self-serving Law declaration 13. Criminal 77—§ rape prosecution, court did not err the exclusion In this knowledge testimony professed psychiatrist that defendant testimony hearsay and was crime of since constituted self-serving as a declaration. inadmissible — — expert drug ex- Law medical use Criminal clusion of 53—§ 14. opinion psychiatrist’s opinion on direct The trial court’s exclusion of drug defendant, erroneous, use to the extent of examination as testimony given substantially prejudicial was not since same on redirect. *3 — of 88— cross-examination treatment defendant Law §§ 15. Criminal psychiatrist con- a on cross-examination to Answers of pertinent cerning covered on direct examination and of treatment were to matters the course of defendant were admissible. Rape sufficiency 5— of evidence § 16. rape prosecu- in a evidence was sufficient for the State’s testimony prosecutrix to show that tion where of the tends against with her force and her will. had intercourse 6— n failure to define “sexual Rape intercourse” § 17. failing prosecution rape in not in to de- The trial a did err court charge rape requires penetration fine and to “sexual intercourse” clearly points by completed organ two all the to the male where State’s evidence contrary penetration, was evidence to the there acts penetration grounded since, on lack of under and the defense was not conveyed circumstances, the term “sexual these intercourse” idea including penetration. completed intercourse, actual —doubt Law 112— reasonable lack evidence § 18. Criminal failing rape to in case not err in instruct the the The trial court did jury case as well as the evidence in consider the “lack evidence” to where was direct and the evidence was not circumstantial but support amply sufficient to verdict. insanity charge on 19. Criminal Law 5— failure § failing charge rápe in err The trial court in a case did not insanity capacity make a defendant did not or lack of where mental insanity request plea such instructions and there was no formal tending he lacked the record to show that was insane or evidence in requisite crime, capacity men- evidence of low mental to commit sufficient tality being in to raise defense to a criminal itself charge. penalty rape 36; 135— for § § 20. Constitutional Law Criminal Law death Imposition penalty rape did not constitute cruel death punishment. and unusual Copeland Sharp dissenting and Exum Chief Justice and Justices as to sentence. death SPRING TERM judgment appeals Rouse, from J18 March Defendant Session, Superior 1974 Criminal Court. Wilson upon proper indictment, Defendant tried was a bill form, charging Ferguson him with the of Norma Coleen County. on December 1973 Wilson
The State’s evidence tends that on 5 to show December Ferguson Fiberglass Sports, employed Norma Coleen at p.m., 450 Black Creek Road At 12:45 defendant en- Wilson. preservers. picked tered and said he He wanted to look at life Ferguson register out three and followed Mrs. around cash prepared slip. where she up sales she looked and told When price, gun pointing him the defendant was at her head and said, you.” Ferguson away scream, “You I’ll kill Mrs. backed register said, money.” from the cash “Take Defendant replied, placed pistol “Get in the room.” back He at her head backed and Then her into back room was used an which office. said,
he pleaded naked.” “Get She with him to no avail and pistol saying, you.” cocked the re- “Get naked I’ll kill She part pantsuit raped moved bottom of her and defendant twice, her first bent across desk and on the thereafter floor. pistol he held Between forced her to two acts the cocked head and her perform upon an sex unnatural act him. *4 Ferguson going
Defendant told Mrs. he was to kill her “at prowled open- ten least ing or fifteen times.” He around the office opened register approxi- He and drawers. cash removed through mately purse, from it. He went her removed a $40.00 pills them, bottle threatening diet and forced to a handful of her swallow swallowing kill her was them
to because she too slowly. Finally, keys purse, her car defendant removed from her away outside, drove in and her car. went Ferguson
Police and told officers were summoned Mrs. and them what had taken to the Clinic occurred. She was Wilson examined This examination evidence Dr. Kirkland. showed presence sperm and the in the of recent intercourse active Ferguson vagina. quite upset, stated Dr. Kirkland Mrs. very distraught, him nervous and and told that a black man gunpoint place worked, to entered the where she forced her at act, raped her; perform he an unnatural sex and forced pocketbook found and to take ten or eleven tablets he in her her thereafter in car. left her IN THE SUPREME COURT Roadway Express, at Edwards, arrived driver for Thomas a Fiberglass Sports place Black on Creek and of business Old delivery. No 1973 make a p.m. on 5 December to Road about lady’s heard a voice in the office in the room but he one was sales nothing Hearing he my God, why?” more, assumed say, “Oh telephone to and decided bad news over she had received only got say, her “I he a dollar leave As left heard her alone. register.” money my He pocketbook, all the is in the cash supervisor telephone to a and told his drove about one-half mile got lady up there at that office” she either to call “that because supervisor called, and trouble. The
bad news was terrible right. Ferguson phone she sounded all when Mrs. answered delivery, returned make the a dark black Mr. Edwards When and, ascertaining that had stuck his head out Mr. Edwards man freight deliver, said, “Well, piece take it around to take it Mr. drove and we’ll around there.” Edwards back door gate, locked, five to the found it waited minutes his truck back again. Following telephone call, a second and with his and left Fiberglass Sports suspicions aroused, he to the and returned already Ed- place and found the officers there. of business Mr. the man he identified the as saw that occa- wards sion. response call, Moore with the Police to a Detective Wilson Fiberglass Sports Department and Fer- went to and found Mrs. sobbing. sitting crying clothing guson Her chair disarray. raped by hair were in She said she been
her young, moustache, him no beard or black man and described as unkempt Afro, hair not an as with uncombed and but and about heavy Detective tall and as Moore. day gave Fergu- thereafter, Moore A two Detective Mrs. photographs twelve black and white of black males son stack recognized requested examine her to them see she her photographs. from She took stack and assailant laid got one, faceup, them one “and when she aside ” Vinson, said, photograph of Ernest John she ‘That’s the man.’ Ferguson positively identified defendant her Mrs. assailant. *5 testify. only Eugene Defendant did His witness was Dr. Regional Maynard, psychiatrist and a former Director of V. Cherry May- Psychiatry Hospital at in Dr. Forensic nard testified that Goldsboro. he examined and observed the defendant performed tests; that December 1973 and a series of it was diagnosis suffering that defendant was from mental retarda- SPRING TERM tion, I.Q. age with approximately an 76 and a mental years, fifteen or sixteen and that defendant had an antisocial personality. Maynard Dr. further stated that defendant said suffering drug dependence was from from all known varieties drugs. you go psychiatric evaluation, largely “In a have you. patient drugs.” what the tells You don’t see him take the cross-examination, Maynard
On I Dr. said: stated “When relatively personality, defendant had antisocial ais psychopathic personality. new term. It used to be known The as type psychopath personality is the of individual who we feel very They limited, any, given has conscience. are com- mitting illegal any acts of an nature without for concern consequences, present. They without concern for have no any people. They given with close ties or affiliations other are any qualms acts of off violence times without of con- [sic] consequences.” drug science or concern for the With reference to addiction, Maynard Dr. while stated that was at defendant Cherry drug Hospital signs he showed no withdrawal and that necessary had not type it drugs been to treat defendant with Maynard while he opinion was there. Dr. had no as to drugs. dependent whether defendant was convicted defendant of and he was sentenced appealed assigning to death. He to this Court errors noted opinion. Edmisten, Attorney General, by L. Harris Claude W. Rufus Attorneys Hensey, General, and Charles M. Assistant for North Carolina. Farris, Attorney appellant.
Robert A. defendant HUSKINS, Justice. A under no circumstances and juror stated on regardless her voir dire examination of the evidence guilty imposition
would she return a if it meant verdict assigns penalty. cause, death was excused She ground. error on that assignment. prop-
There is
no merit
erly
Monk,
509, 212
excused for cause. State v.
N.C.
;
(1975)
Ward,
2d 407
2d 844
(1974).
(1974) ;
(1974);
Honeycutt,
203 S.E.
Crowder,
“After the some of names of the the of the Court that to jurors attention jury panel at random from a box the drawn from by sheriff, deputy than drawn a rather in fact been jurors all the who had The court directs that the clerk. by the and State shall be seated both the defendant been returned by challenged jurors panel. All who had been to the panel. from the defendant are removed the State the jury proceed and shall the selection shall begin anew, allowed total of with the defendant to be challenges any challenges, here- (14) in fourteen tofore exercised and the State is addition to (9) allowed total nine challenges challenges exer- heretofore addition all The clerk is directed to return the names of cised. by passed jurors had been the State and the defendant who remaining original jurors panel box all in the to the and by at random the clerk. This find- selected called presence ing the defendant and order was entered in the presence the solicitor out of counsel and jury. foregoing procedure presence of To the through consents; his counsel also the solicitor.” Dependant’s Exception No. 3 assigns foregoing proceedings Defendant as error jurors deputy (1) the nine seated had been drawn abrogation (2) “in 9-5” the court sheriff awarded challenges N.C.G.S. § challenges peremptory nine to the in addition already exercised, it had De- a violation of G.S. 9-21. says expansion fendant the statute forbids such an “even purported consent.” prescribes It should be at the outset G.S. observed drawing jurors jury procedure panel from the
the box at they thirty days prior least court in which to the session of epi- application has serve. It context of this shall sode. quotation out con- above set is all record contains
cerning assignment. however, apparent, It is that a panel deputy re- was drawn the clerk or his assistant or TERM 1975 SPRING *7 jurors sum- drawn had been by that all so quired 9-5 and G.S. duty. jury Preparatory to selection reported for moned and panel had been the entire the names of jury this case of a paper placed a hat slips of and separate or placed scrolls drawn at jury box) were from which names (not the or box interrogation as their fitness to serve random for drawing were some of the names in which jurors. this It was by deputy rather than the clerk. When sheriff in fact drawn judge, brought of the able trial to the attention fact was procedure set out. discretion, adopted heretofore the he, in his prejudice taken. in the action and no no error We see language Chapter the 9 of General Statutes no findWe through personally, an requires of the court the clerk which drawing deputy clerk, random to make the assistant so as to render panel from a hat or box on the names of those may, the illegal drawing by Be that as it else. such someone caution, proceedings nullified judge, trial in an abundance returning from which drawn anew, to the hat or box and started by already accepted jurors both sides of the nine names challenged jurors already success discarding the of all names that defendant fully by judge then announced party. The either challenges would peremptory would fourteen have (b), (a) and com nine, the allowed G.S. have pletely maximum challenges either the disregarding peremptory This demon may theretofore. have exercised or the defendant commended, not condemned. should be of fairness stration 796, cert. denied 414 Harris, 2d 194 S.E. State v. The record does 38 L.Ed. S.Ct. U.S. any, many challenges, used peremptory were disclose how possible prejudice to perceive no defendant or State. We defendant. regulate judge empowered and authorized is jury the end both supervise of the the selection fair of a trial receive benefit defendant and and jury. Atkinson, impartial 167 S.E. penalty 29 L.Ed. rev’d as to death U.S. prej- Defendant has shown S.Ct. assignment is overruled. udicial error. This
' assignment is based on Nos. Defendant’s second relating examination 2, 4, 5, 6, 7, 8, to the voir dire and 11 during jury. of the of veniremen selection THE COURT IN SUPREME
State points following reproductions serve to illustrate seeks to raise: Jernigan, “Mr. if it was shown Defense Counsel: ac- your that the defendant couldn’t control satisfaction going of this know on at time tions and didn’t what you indictment, verdict still inclined to return a would imposition cause the of the death which would sentence?” Exception Objection 2No. Defendant’s Sustained. “ it, Now, I . . understand . Defense Counsel: everyone capital punishment and on the is in favor of Now, punishment is for this offense. in favor of anyone jury, there offense, on the nature because *8 you might prej- or like be a little’ bit biased unconsciously, feels udiced, consciously of the either or because involved; anyone type or the nature of the offense is there they feels that would be in of sen- on the who favor rape?” other than death for offense tence Exception Objection No. 4 Defendant’s Sustained. “Now, Rouse, there, is Mrs. can Defense Counsel: you any any of facts in which think of circumstance set charged you rape, that a defendant and convicted penalty?” in favor of the death would Objection Exception No. 5 Defendant’s Sustained. you from the Counsel: “If are satisfied Defense was of his act at evidence that the time defendant not conscious allegedly committed, you was would still feel it guilty?” compelled to return verdict Exception Objection No. 6 Defendant’s Sustained. you “Well, if are from satisfied Defense Counsel: intentionally wilfully evidence, person that a did not question, you verdict, would return a commit the act still beyond you evidence, reason- if from were satisfied you committed, doubt, would still able return a verdict of that act knowing guilty would that sentence mandatory be a death sentence?” Objection Exception No. Sustained. Defendant’s “Well, words, Ash, in other Mr. Defense Counsel: you you saying that if the de- even are satisfied that are TERM SPRING right you might fendant wrong, did not know from still return a that verdict would him cause be sentenced gas chamber?”
Objection Dependant’s Exception Sustained. 8No. you Defense “Well, Ash, Counsel: Mr. are satis- evidence, fied from the purported that at the time of offense, right that the defendant wrong, did not know from you knowing would guilty, you still return a verdict of as punishment now know what the would be?” Objection Dependant’s Exception Sustained. No. 9 question. : “He has answered Court true, Isn’t that sir, you you said didn’t know how to answer Dependant’s Exception question?” No. 10 Ash, : “Mr. is there reason that Defense Counsel why you, you give hasn’t been asked of would not the benefit require rule would him right wrong to know from guilty?” before he would be
Objection Exception Dependant’s Sustained. 11No. Defendant states in his brief that Nos. 4 and 5 question, “involve a panel, first to the entire and then to an individual capital punishment their beliefs and attitudes *9 charged. for the crime . . . The remainder of questions objections the by to which his Honor sustained the solicitor involved pective perceive pros- defendant’s effort to whether jurors accept insanity would an defense.” Defendant inquiries proper the contends purposes were for those and ex- by clusion of them the prejudicial court constitutes error. selecting
“In jury, any court, party action, the the or to an criminal, right civil and inquiry or the has to make to the as fitness competency person of juror.” to serve a v. as Allred, 554, (1969). 169 pointed 2d 833 S.E. We out in Allred that the jurors voir dire examination of has a double (1) purpose: grounds to challenge ascertain whether exist for (2) for peremptory and intelligently cause to enable counsel to exercise the challenges presiding judge allowed law. “The questions shall decide all competency questions jurors.” as to the of G.S. (1969). ruling subject His on such is not to appellate accompanied review unless imputed some error of IN THE SUPREME COURT 336 796, denied Harris, cert. State v. 283 194 2d law. N.C. S.E. (1973). 414 38 2d 94 143 U.S. L.Ed. S.Ct.
reject.
Challenges
[3]
(1913)
the
We said
It
State,
: “The
is
for cause are without
right
given
pick
of
for the
jury,
challenge
English,
purpose
but
limit if cause is
to
is
164
not
secure
enabling
N.C.
one
an
to
498, 80
impartial
the
accept,
shown, while
defendant,
S.E.
but
one.”
72
to
challenges may
al
peremptory
exercised within
limits
be
McKethan,
81, 152
lowed
law. State v.
jurors
of the manner
sound discretion of the court.
exercise
subject
While
judge’s
voir
the trial
discretion.
wide latitude is allowed
dire,
right
judge’s
extent
[Citation omitted.]
inquire
form
close
“In this
into
supervision. The
inquiry
the fitness of
questions
counsel
jurisdiction
rests
overwhelming
is
largely
within the
examining
regulation
jurors
counsel’s
Bryant,
majority
of the states follow this rule.” State
cert. denied 410 U.S.
include
“those
his verdict would be if
what
evenly balanced;
of
evidence were
doubt
if he had a reasonable
guilt;
beyond
a defendant’s
if he were
a reasonable
convinced
guilt;
asking
doubt
of a defendant’s
him whether
would,
specified hypothetical
situation,
in a
of
vote in favor
penalty.
Also,
the death
improper
. . .
it has been considered
jurors hpothetical questions concerning issues,
ask
especially
may
defenses,
certain criminal
which
never be raised at
2d,
trial.”
Jury,
(1969) ;
47 Am. Jur.
Peo-
203
see Proctor v.
§
ple,
163,
(1937) ;
101
2d
Cal-
Colo.
71 P.
806
Commonwealth
houn,
474,
(1913) ;
Jury
Annot.,
238 Pa.
ject to the control and the trial Carey, *11 IN THE SUPREME COURT v.
tion was [7] With premised reference to Exception statement No. we “everyone first note the on the ques punish punishment capital is in favor of is in favor of that and by supported assumption ment for this is not offense.” Such an question Secondly, the record two before us. contains sub- questions dealing inquiry. points of form with different This question ambiguous totally confusing inherently makes the and question prospective jurors. properly re Therefore, to jected. was elicit [8] information regard to Exception No. circumstances defense counsel or set sought facts to mitigate penalty juror’s which would on the death in to views reasonably expected question case. not be could bearing juror’s qualifications elicit a upon and information consequential overly challenge cause, and broad for purpose eliciting relevant exercise information to challenge. juror peremptory a quired No be re should generality. questions scope answer such supra. pro Washington, question v. exceeded the bounds of priety properly and was disallowed. ques Defendant further that the exclusion contends right Exceptions noted him tions 2 and denied Nos. insanity inquire accept prospective jurors an “whether would may inquiry appropriate defense.” in certain While cases against regard prejudiced made in to whether a carefully insanity, defendant’s
*12
defense of
contentions
we have
reviewed
presented
and find
under the circumstances here
judge properly
the trial
United
exercised his
See
discretion.
Annot.,
(D.C.
1973);
Cockerham,
States
Jury
The
10,
No.
concerns the trial
court’s
question pro
statement
that Mr. Ash had
answered
pounded by
Nothing
frag
defense
appears
counsel.
else
in this
mentary
concerning
record
the examination and answers of this
juror.
assume
We
the trial court
was correct
its observation that
had indicated he “didn’t know
question.”
how to
being
answer that
case,
That
the trial
properly
court
repetitious
concerning
limited further
hypothetical
insanity.
supra;
defense of
Bryant,
State v.
State,
Grizzell v.
164
362,
(1956).
Tex. Crim.
In his contention, three, next based on four six, argues admitting the trial court erred in improper objection excluding competent evidence over his and in evidence elicited him at trial.
[11,12] Assignments relating four, testimony three and Moore, patently testimony Detective are without merit. regard Ferguson of this witness to what Mr. had told him during investigation clearly of the incident corroborates previous testimony Ferguson of Mrs. and was admissible purpose. Cook, 2d 104 (1972) ; Rose, State v. Ferguson’s Furthermore, it is settled that Mrs. the word use of “rape” during investigation opinion not did constitute an question Sneeden, on a law. S.E. that (1968). Similarly, argument there is no merit to the admitting the trial court erred in without a examina- voir dire IN SUPREME COURT THE v. Vinson Ferguson’s testimony Mrs. tion the of this witness prior photograph to trial. Mrs. of a of defendant identification Ferguson already in-court made an on direct examination had gave she of defendant and on cross-examination identification testimony explicit objection pretrial identification, all without request Moreover, voir examination. or a for a dire suggesting nothing pretrial there is procedure in the record whatever suggestive impermissibly man was conducted in an ner. dire examination was Under these voir circumstances requested necessary, especially not at since one was objection testimony time State to the of Detective Moore. was made supra; Blackwell, Cook, S.E. 253 cert. denied 400 U.S. 27 L.Ed. 2d 91 S.Ct. *13 Assignment upon exceptions, 16-20, Nos. six is five based Maynard’s rulings aspects to the trial court’s on certain Dr. testimony. [13] Exception No. 16 is directed to the trial court’s action in sustaining any following objection question: “At State’s your him,
time indi conference with did the defendant any knowledge cate has been to the crime for which he charged?” Maynard presence Dr. Out testi knowledge any professed fied that defendant no crime of rape. relevancy inquiry this Defendant does not disclose the perceive any legitimate question purpose. and we do The stating hearsay answer, called for inadmissible doctor’s charged with what defendant had had been declared after he crime, was of nature. Defendant did not take the self-serving stand and admissible for the doctor were not his declarations to purpose. Taylor, State v. 185 280 N.C. objection (1972). properly S.E. 677 The sus State’s tained.
[14] Exceptions Nos. 17 and 18 relate to the trial court’s sustaining objections during action in nation exami direct State’s questions concerning Maynard’s opinion as to the Dr. drug perusal extent the record use defendant. Our indicates that on examination counsel was redirect defense permitted Maynard opinion to ask Dr. had an “whether or drugs dependent response not the defendant was on In thereto ?” opinion. copy “I no I of a witness answered: have have a diagnosis report page 3, on Ernest On Vinson. number under ’ ‘drug dependence, it reads all This known varieties. . . . TERM 1975 SPRING y. diagnosis.” assuming the current Even error on direct examinar tion, perceive prej- concede, possible which we do not we substantially question udice since same was asked on answered redirect.
with answers of the doctor on cross-examination to [15] We find no merit Exceptions Nos. 19 and 20 which deal questions the course of treatment of The defendant. pertinent and answers were to matters covered on exami direct obviously Stone, nation and were admissible. State v. (1946) ; Perry, S.E. 2d 704 State v. 210 N.C. S.E.
Assignments three, six, therefore, four and overruled. are erred denying assignment motion five defendant contends the as of nonsuit at the close of the court assignment. State’s find evidence. no merit in this tes We timony prosecuting plenary witness contains evidence show, light which tends to when taken in the most favorable State, to the that defendant intercourse her with force against Accordingly, her will. motion defendant’s as of properly Williams, nonsuit was overruled. State (1975) ; Arnold, 2d 113 assignment, seventh based Nos. through 25, instructing error the trial court in asserts jury. to failed charge Defendant’s to define that rape the *14 Exception requires term “sexual intercourse” and penetration No. 22 is that the male the thus failed organ. court charged: “Rape court with a is forcible sexual intercourse against woman, guilty you her will. For to find defendant of beyond rape, satisfy you the must from the State evidence and things. First, defendant, reasonable doubt of three Ernest that the alleged John sexual intercourse with victim, Ferguson,” Norma etc. Coleen knowledge rape The law of a female as the carnal defines against (1969) ;
person by v. State force and her G.S. will. Armstrong, 60, (1975). 212 2d 894 “The terms 287 S.E. N.C. knowledge’ synonymous. ‘carnal There is ‘carnal sense if there ‘sexual intercourse’ are knowledge’ legal in a or ‘sexual intercourse’ slightest organ penetration of is the sexual THE COURT IN SUPREME
342 v. Vinson
*15
State
Murry,
organ
v.
the male.”
sexual
State
female
of the
Jones,
(1970) ;
v.
249 N.C.
197,
State
2d 738
176 S.E.
277 N.C.
respect
not
(1958).
law does
513
In this
134,
105 S.E.
stating
any particular phraseology
defend-
require
knowledge
complaining
v.
witness. State
had carnal
ant
Bowman,
(1867). Accordingly,
Hodges,
This is overruled. penalty in Finally, this case constitutes cruel defendant contends and unusual imposition punishment. the death has heretofore been considered determined This contention Vick, to be without merit various cases. Armstrong, 60, 212 (1975) ; Therefore, defend cited and cases therein. eighth assignment overruled. on this contention is based ant’s *16 IN THE COURT SUPREME y. Wetmore prej- assignments, find no of all we After careful review judgment there- The verdict and must error in the trial. udicial upheld. fore be
No error. Sharp dissenting sentence: to the death as
Chief Justice occurred convicted for which defendant has been period during 18 Jan- between on a date 5 December Waddell, day in v. uary 1973, decision day April which 2d and 8 194 S.E. Assembly by enactment rewrote G.S. the General For reasons Chapter Laws 1973. 1201 of Session dissenting Jarrette, opinion in State v. stated seq. (1974), seq., I dissent 2d 747 et 625, 666 et S.E. by imposed upon the court the death sentence imposition to remand for the of a sentence below and vote life imprisonment. Copeland death sentence and votes dissents as to
Justice imprisonment imposition of life of a sentence remand dissenting opinion in State Williams. stated reasons 422, 437, 212 majority portion of the Exum from that Justice dissents opinion sentence votes to remand which affirms the death imprisonment in order a sentence of life can be this case dissenting opinion in imposed for stated in his the reasons Williams, 422, 439, STATE OF CAROLINA ROGER LAWRENCE WETMORE NORTH No. 47 (Filed 1975) 6 June challenge jurors accepted Jury 1. 5— reexamination and both sides § prosecution, per- not err this homicide court did mitting attorney challenge reexamine the district for cause juror challenge peremptorily prospective sec- and to reexamine and passed both been ond after State and