State v. . Cline ( 1920 )

Brown, J.

The defendant was convicted of the crime of rape committed upon the person of Bessie Conrad, a young girl about 18 years of age, who, if the evidence is to be believed, is a girl of good character and well known to defendant, who lived next door to her parents.

1. The evidence for the State disclosed that two acts of sexual intercourse, alleged to be rape, took place.

The defendant moved that the State be required to elect upon which it would rely for conviction.

The court overruled the motion.

S. v. Parish, 104 N. C., 679, is direct authority, it seems to us, sustaining the judge. The matter of election is committed to the sound discretion of the judge. The evidence of the two acts here is so mixed and dependent on each other, with its attending circumstances, that it would not be practicable to confine the prosecutor to one transaction without destroying what seems to be prima facie case of guilt against the defendant.

2. At close of the evidence defendant moved to nonsuit the State upon the ground that the evidence is insufficient to be submitted to the consideration of the jury.

The majority of the Court are of opinion that the motion was properly overruled, and that it was the duty of the judge to submit the evidence to the jury for their consideration. We will not discuss it, as there is to be another trial.

The court, in charging the jury, failed to state in a plain and correct manner the evidence given in the case, and in not declaring and explaining the law arising thereon. But, on the contrary, expressly stated: “Much testimony has been offered which I will not attempt to rehearse, as it is your province to remember the evidence, and it is your duty to weigh and believe or disbelieve it, in whole or in part, and if so, what part is respective of the contentions of the State and of the defendant. It is your duty to remember the evidence.”

The case on appeal is signed by the judge, and the above exception is stated over his signature, and is duly assigned as error.

We think tbe exception is well taken.

It does not appear in tbe record tbat tbe learned judge attempted to state tbe evidence as required by tbe statute, and it does not appear tbat it was waived by defendant. Sec. 535 of tbe Revisal provides: tbat in charging tbe jury, tbe judge “shall state in a plain and correct manner tbe evidence given in tbe case, and declare and explain tbe law arising thereon.”

This statutory requirement, enacted first in 1796 has been regarded as mandatory, and as imposing upon tbe judge a very important and necessary duty. Tbe purpose of it is to aid tbe jury in remembering tbe evidence, although they are not bound by tbe judge’s version of it, as well as to have tbe law made intelligible to tbe jury.

In S. v. Rogers, 93 N. C., 523, tbe Court says: “It is held as a general rule tbat an omission on tbe part of tbe judge to charge tbe jury on a certain point is not error unless be is requested to do so. But when tbe judge, in bis charge, fails to state in a precise and correct manner tbe evidence given in tbe ease, and explain tbe law arising thereon, as be is required to do so by sec. 413 of tbe Code, there is error. There are so many decisions in our reports construing this statute and pointing out tbe duty of tbe courts under its provisions tbat we are at a loss to conceive why a judge should fail to comply with its directions.”

It is true tbat tbe defendant should have asked for specific instructions if be desired tbe case to be presented to tbe jury by tbe court in any particular view, but, as said by Mr. Justice Walker in Simmons v. Davenport, 140 N. C., 412, this rule “does not of course dispense with tbe reqifirement of tbe statute tbat tbe judge shall state in a plain and correct manner tbe material portions of tbe evidence given in tbe case, and explain tbe law arising thereon.” But we do not mean to imply tbat tbe judge is obliged to repeat all tbe evidence to tbe jury. We bear in mind what is said by Judge Gaston in S. v. Haney, 19 N. C., 390: “Tbe judge is not bound to recapitulate all tbe evidence to tbe jury; it is sufficient for him to direct their attention to tbe principal questions which they have to investigate, and to explain tbe law applicable to tbe case, and this particularly when be is not called upon by counsel to give a more full charge.”

This is repeated and approved in Boon v. Murphy, 108 N. C., 191.

It is especially important for tbe benefit of tbe State as well as for tbe protection of tbe defendant tbat in tbe trial of capital felonies tbe requirements of tbe statute shall be carefully observed.

New trial.