State v. Crouse , 22 N.C. App. 47 ( 1974 )

205 S.E.2d 361 (1974) 22 N.C. App. 47

STATE of North Carolina
v.
Jessie Lee CROUSE.

No. 7422SC335.

Court of Appeals of North Carolina.

June 5, 1974.

Atty. Gen. Robert Morgan by Richard F. Kane, Associate Atty., Raleigh, for the State.

Jack E. Klass, Lexington, for defendant appellant.

VAUGHN, Judge.

Defendant's contention that the bill of indictment should have been quashed because G.S. § 14-177, the crime against nature statute, is unconstitutionally vague is overruled. We have previously held that the statute is constitutional. State v. Moles, 17 N.C.App. 664, 195 S.E.2d 352.

Defendant next contends that the trial court erred in not quashing the indictment upon a plea of former jeopardy. Defendant was indicted for rape of Teresa Jean Fulk. After a jury was impaneled in the rape case, the State took a nolle prosequi with leave. About this time, the indictment for crime against nature was returned. Rape and sodomy are distinct and separate crimes each having different elements. An indictment for rape would not support a conviction for sodomy. Although both indictments against defendant involved the same transaction, they did not charge offenses which were the same in law and fact. Consequently, defendant has not been twice put in jeopardy for the same offense.

Defendant argues that the court improperly allowed the solicitor to use leading questions in eliciting testimony from Teresa Jean Fulk. Given the circumstances surrounding this case, whether to permit leading questions was within the court's discretion. State v. Payne, 280 N.C. 150, 185 S.E.2d 116. In view of the nature of the crime and the extreme youth of the witness, the court did not abuse its discretion in allowing the questions as propounded by the solicitor.

Defendant further contends that the court erred in not giving limiting instructions when it allowed several witnesses to testify to what Teresa Jean Fulk had told them about the crime in question. Since defendant did not request the court to instruct that the testimony was admissible solely for the purpose of corroboration, he may not now complain about the lack of limiting instructions. State v. Tuttle, 207 N.C. 649, 178 S.E. 76.

Defendant maintains that testimony tending to show that defendant "had committed another distinct, independent or separate offense" should have been excluded. This assignment of error is without merit. Defendant failed to object to part of the testimony, and when an objection was finally lodged, it was sustained and the jury was properly instructed to disregard the testimony.

On appeal, defendant contends that the court erred in allowing the solicitor to question defendant about prior convictions of criminal offenses without first determining whether defendant was represented by counsel at the proceedings resulting in those convictions. Defendant's testimony on cross-examination is set out in narrative form and does not contain the solicitor's questions. In several instances defendant admitted his prior criminal conduct without saying whether he had been tried for these crimes. No objections were made at trial and, on appeal, defendant has failed to show prejudicial error.

Defendant brings forward numerous assignments of error directed to the court's instructions to the jury. Again, as he did in State v. Gray, 21 N.C.App. 63, 203 S.E.2d 88, the trial judge gave the jury his understanding of the 18th and 19th Chapters of the First Book of Moses called Genesis. He also recited some of the statutory history of the act which defendant was charged and the genealogy of English royalty. Although the judge's monologue was inappropriate, we do not believe the error was prejudicial to the defendant. For an article on the history and meaning of the statute, see 32 N.C.L.Rev. 312. Defendant's other exceptions to the charge are also overruled. We have considered all of defendant's assignments of error and hold that he had a fair trial without prejudicial error.

No error.

CAMPBELL and MORRIS, JJ., concur.