State v. Goines , 273 N.C. 509 ( 1968 )

160 S.E.2d 469 (1968) 273 N.C. 509

STATE
v.
Bobby Lee GOINES.

No. 498.

Supreme Court of North Carolina.

April 17, 1968.

Boyce, Lake & Burns by F. Kent Burns, Raleigh, for defendant appellant.

T. W. Bruton, Atty. Gen., and James F. Bullock, Deputy Atty. Gen., for the State.

J. FRANK HUSKINS, Justice.

To constitute an assault with intent to commit rape, it is not necessary that the assailant retain such intent throughout the assault. It is sufficient if he at any time during the assault has an intent to gratify his passion upon the prosecutrix at all events, notwithstanding any resistance on her part. State v. Petry, 226 N.C. 78, 36 S.E.2d 653; State v. Williams, 121 N.C. 628, 28 S.E. 405. "The intent is necessarily an inference to be drawn from the defendant's acts, and it must be drawn by the jury and not by the judge, when there is any evidence." State v. Mehaffey, 132 N.C. 1062, 44 S.E. 107.

Defendant's first assignment of error is addressed to the statement of the prosecuting witness, admitted over his objection, that defendant put his face down close to hers, "trying to kiss me." The statement is admissible as a shorthand statement of fact. It is not error to permit a witness to testify that a hammer was in "good condition," Watson v. City of Durham, 207 N.C. 624, 178 S.E. 218; that a car was moving "real fast," Benson v. Sawyer, 257 N.C. 765, 127 S.E.2d 549; that a stairway went up "as a corkscrew would," Mintz v. Atlantic Coast Line Railway Co., 236 N.C. 109, 72 S.E.2d 38. An observer may testify to common appearances, facts and conditions in language which is descriptive of facts observed so as to enable one not an eyewitness to form an accurate judgment in regard thereto. Tyndall v. Harvey C. Hines Co., 226 N.C. 620, 39 S.E.2d 828.

The prosecuting witness testified over defendant's objection that the occupants of the Vance Apartments on the front entrance of the building "up to the third floor had raised their window and was yelling for him to * * * turn that woman aloose." This testimony is obviously competent as part of the res gestae. "Exclamations or declarations spontaneously evolved by the event and relevant to the inquiry are a part of the res gestae, and testimony thereof is competent as an exception to the hearsay rule." 3 Strong, N.C. Index 2d, Evidence § 35, and cases cited.

Failure of the court to nonsuit is defendant's third assignment of error. Motion to nonsuit requires the trial court to consider the evidence in its light most favorable to the State, take it as true, and give the State the benefit of every reasonable inference to be drawn therefrom. State v. Cook, 273 N.C. 377, 160 S.E.2d 49; State v. Cutler, 271 N.C. 379, 156 S.E.2d 679; State v. Overman, 269 N.C. 453, 153 S.E.2d 44. Regardless of whether the evidence is direct, circumstantial, or both, if there is evidence from which a jury could find that the offense charged has been committed and that defendant committed it, the motion to nonsuit should be overruled. State v. Norggins, 215 N.C. 220, 1 S.E.2d 533. The evidence in this case, when so considered, depicts a vicious assault on a prosecuting witness who positively identifies defendant as her assailant. There is substantial evidence of every material element of the offense, including intent. It was therefore a question for the jury.

Defendant assigns as error the following excerpt from the charge in parentheses: "Upon the defendant's arraignment under this bill of indictment, the defendant entered a plea of not guilty. (By his plea of not guilty he not only denies that he is not guilty)—he denies that he is guilty of any crime with which he is charged, but he challenges and denies the credibility of the witnesses and the evidence upon which the State relies for conviction." This was a lapsus linguae immediately corrected by the court so that the jury could not possibly have been misled. State v. Withers, 271 N.C. 364, 156 S.E.2d 733. It was therefore harmless.

The prosecuting witness testified that during the assault and while defendant was on top of her, he started "pulling at my clothes." In reciting the evidence during the charge, the court used the words "pulling up her clothes" and "pulling up her dress" in lieu of the words actually used by the witness. Defendant assigns this as error.

Slight inadvertencies in recapitulating the evidence or stating contentions must be called to the attention of the court in time for correction. Objection after verdict comes too late. State v. Cornelius, 265 N.C. 452, 144 S.E.2d 203; State v. Case, 253 N.C. 130, 116 S.E.2d 429; State v. Holder, 252 N.C. 121, 113 S.E.2d 15; State v. Adams, 245 N.C. 344, 95 S.E.2d 902. Even so, the evidence indicates defendant was trying to remove the clothing or get it in such position as not to interfere with his purpose. It seems immaterial whether he was "pulling up" or "pulling down" or "pulling at."

Defendant has had a fair trial, free from prejudicial error, and the verdict and judgment entered below will be upheld.

No error.

SHARP, J., took no part in the consideration or decision of this case.