State v. Murry , 277 N.C. 197 ( 1970 )

176 S.E.2d 738 (1970) 277 N.C. 197

STATE of North Carolina
v.
Willie Lee MURRY.

No. 5.

Supreme Court of North Carolina.

October 14, 1970.

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

J. H. Barrington, Jr., Lumberton, for defendant appellant.

BOBBITT, Chief Justice.

The act of "carnally knowing and abusing any female child under the age of twelve years" is rape. G.S. § 14-21; State v. Monds, 130 N.C. 697, 41 S.E. 789; State v. Johnson, 226 N.C. 671, 40 S.E.2d 113. Neither force, State v. Johnson, 226 N.C. 266, 37 S.E.2d 678, nor intent, State v. Gibson, 221 N.C. 252, 20 S.E.2d 51, are elements of this offense.

"The terms ``carnal knowledge' and ``sexual intercourse' are synonymous. There is ``carnal knowledge' or ``sexual intercourse' in a legal sense if there is the slightest penetration of the sexual organ of the female by the sexual organ of the male. It is not necessary that the vagina be entered or that the hymen be ruptured; the entering of the vulva or labia is sufficient. G.S. § 14-23; State v. Monds, 130 N.C. 697, 41 S.E. 789; State v. Hargrave, 65 N.C. 466; State v. Storkey, 63 N.C. 7; Burdick: Law of Crime, section 477; 44 Am.Jur., Rape, section 3; 52 C.J., Rape, sections 23, 24." State v. Bowman, 232 N.C. 374, 61 S.E.2d 107; State v. Jones, 249 N.C. 134, 105 S.E.2d 513.

The State's evidence was positive as to each and every element of the crime charged in the bill of indictment.

Defendant presents two questions: (1) Was the admission of Johnson's testimony as to defendant's in-custody statements erroneous and prejudicial? (2) Did the court err in instructing the jury with reference to the lesser included offense of assault on a female?

There was ample evidence to support Judge Brewer's findings of fact. It is not contended that Johnson did not carefully and fully advise defendant as to his constitutional rights. Defendant contends the incriminating statements attributed to him by Johnson should have been excluded because (1) defendant was sixteen years old, and (2) several officers were present when the statements were made.

With reference to defendant's age, the record shows: Johnson testified on voir dire he knew defendant was "a sixteen-year-old boy." He testified at trial that defendant stated "that he completed the eighth grade in school". In the annotation, 87 A.L.R. 2d at 626, it is stated: "A confession is not inadmissible, in the absence of a statutory provision to the contrary, merely because the person making it is a minor." This rule obtains in this jurisdiction. State v. Hill, 276 N.C. 1, 14, 170 S.E.2d 885, 894.

With reference to the presence of other officers, the record shows: The interrogation of defendant on both occasions was by F. D. Johnson, Special Agent of the State Bureau of Investigation. Their first conversation took place in the sheriff's office in the courthouse in Lumberton. During portions of the interview, Luther W. Hagens, Chief of Police of Red Springs, and Leroy Freeman and Carl Herring, Deputy Sheriffs, were in the office. Other (unidentified) officers stayed "in the outside office." The following morning, when the tape recording was made, the only officer present, except Johnson, was the deputy sheriff (Freeman) who had custody of defendant.

"(T)he mere fact that a confession was made while the defendant was in custody of police officers, after his arrest by them upon the charge in question and before employment of counsel to represent him, does not, of itself, render it incompetent." State v. Gray, 268 N.C. 69, 78, 150 S.E.2d 1, 8, and cases cited.

Nothing in the evidence indicates that any officer mistreated, deceived or otherwise coerced defendant. Obviously, by getting on the roof of his house, defendant was seeking to conceal himself from the officers. After his arrest, according to Johnson's testimony and the statements attributed by Johnson to defendant, defendant was not intimidated or frightened. Upon the uncontroverted evidence and factual findings, the court properly admitted Johnson's testimony as to incriminating statements made by defendant.

As indicated, defendant assigns as error the court's instruction that the jury might return a verdict of guilty of an assault upon a female by a male person over the age of eighteen years. It is contended that this instruction is erroneous because the only evidence as to defendant's age (Johnson's testimony on voir dire) tends to show that he was sixteen years of age. In so instructing the jury, seemingly the court had in mind the provisions of G.S. § 14-33 (G.S. 1B, Recompiled 1953) prior to the rewriting thereof by Chapter 618, Session Laws of 1969, now codified as G.S. § 14-33 (G.S. 1B, Replacement 1969). Presently, under G.S. § 14-33, a person who "(a)ssaults a female person, he being a male person," is guilty of "an aggravated assault."

The inadvertent error in the court's said instruction was not prejudicial to defendant. All of the evidence tended to show the completed crime of rape. Apparently, the court considered certain of the statements attributed to defendant indicated his act of intercourse with Linda was not in all respects complete, and that this warranted the submission for jury consideration of the lesser included offense of assault with intent to commit rape.

Nothing in the evidence warranted a verdict of guilty of a mere simple assault upon a female person by a male person. G.S. § 15-169 and G.S. § 15-170 are applicable only when there is evidence tending to show that the defendant may be guilty of a lesser offense. State v. Jones, 249 N.C. 134, 139, 105 S.E.2d 513, 516, and cases cited. "The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor." State v. Hicks, 241 N.C. 156, 159, 84 S.E.2d 545, 547; State v. Williams, 275 N.C. 77, 88, 165 S.E.2d 481, 488. The error in the instruction was not prejudicial to defendant but definitely in his favor.

The evidence depicts a twofold tragedy: An eleven-year-old girl, referred to in defendant's confession as the "smaller girl," as the victim of rape, has experienced an unforgettable ordeal. A sixteen-year-old boy, by his lustful and uninhibited conduct, has forfeited his liberty.

No error.

Justice Lake did not participate in the consideration or decision of this case.