State v. Vincent , 278 N.C. 63 ( 1971 )

178 S.E.2d 608 (1971)

STATE of North Carolina
v.
Frank Wallace VINCENT.

No. 96.

Supreme Court of North Carolina.

January 29, 1971.

Atty. Gen. Robert B. Morgan and Asst. Atty. Gen. I. Beverly Lake, Jr., for the State.

Wallace C. Harrelson, Public Defender, for defendant appellant.

MOORE, Justice.

Defendant makes these assertions by his assignments of error: (1) That the court erred in refusing to dismiss the prosecution upon a compulsory nonsuit. G.S. § 15-173. (2) That the court erred in entering and signing the judgment as appears of record.

A father violates G.S. § 14-178 and by reason thereof is guilty of the statutory felony of incest if he has sexual intercourse, either habitual or in a single instance, with a woman or girl whom he knows to be his daughter. A conviction for incest may be had against a father upon the uncorroborated testimony of the daughter if such testimony suffices to establish all the elements of the offense beyond a reasonable doubt. State v. Rogers, 260 N.C. 406, 133 S.E.2d 1; State v. Wood, 235 N.C. 636, 70 S.E.2d 665; State v. Sauls, 190 N.C. 810, 130 S.E. 848; Strider v. Lewey, 176 N.C. 448, 97 S.E. 398. On motion for judgment as of nonsuit, the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable intendment thereon and every reasonable inference therefrom. State v. Primes, 275 N.C. 61, 165 S.E.2d 225; State v. Lipscomb, 274 N.C. 436, 163 S.E.2d 788; State v. Davis, 272 N.C. 469, 158 S.E.2d 630; State v. Overman, 269 N.C. 453, 153 S.E.2d 44; 2 Strong's N.C.Index 2d, Criminal Law § 104, p. 648. Only the evidence favorable to the State will be considered, and the evidence relating to matters of defense or the defendant's evidence in conflict with that of the State will not be considered. State v. Miller, 271 N.C. 646, 157 S.E.2d 335; State v. Young, 271 N.C. 589, 157 S.E.2d 10; State v. Glover, 270 N.C. 319, 154 S.E.2d 305; State v. Goins, 261 N.C. 707, 136 S.E.2d 97; State v. Moseley, 251 N.C. 285, 111 S.E.2d 308; State v. Gay, 251 N.C. 78, 110 S.E.2d 458; 2 Strong's N.C.Index 2d, Criminal Law § 104, p. 650.

In the instant case there was positive testimony by the prosecuting witness that the defendant, her father, while living with her in the relationship of father and daughter, had sexual intercourse with her. This testimony was corroborated by the other witnesses to whom she had reported the occurrence. Judge Collier correctly adjudged that this evidence for the State made the defendant's guilt a question for the jury.

The defendant's exception to the signing and entry of the judgment raises only the question of whether there is error or a fatal defect apparent on the face of the record proper. State v. Hilton, 271 N.C. 456, 156 S.E.2d 833; Dellinger v. Bollinger, 242 N.C. 696, 89 S.E.2d 592; 3 Strong's N.C.Index 2d, Criminal Law § 161. In the instant case, no such error or defect appears. The bill of indictment properly charges the offense. The judgment is within the statutory limits and is supported by the verdict. Therefore, the defendant's exception to the signing and entry of the judgment is without merit. State v. Sloan, 238 N.C. 672, 78 S.E.2d 738; State v. Williams, 235 N.C. 429, 70 S.E.2d 1; State v. Oliver, 213 N.C. 386, 196 S.E. 325; 3 Strong's N.C.Index 2d, Criminal Law § 161.

We have carefully reviewed the record and find no error.

No error.

LAKE, J., did not participate in the consideration or decision of this case.