State v. Cox , 280 N.C. 689 ( 1972 )

187 S.E.2d 1 (1972) 280 N.C. 689

STATE of North Carolina
v.
John Leroy COX.

No. 77.

Supreme Court of North Carolina.

March 15, 1972.

Atty. Gen. Robert Morgan and Special Counsel Ralph Moody, Raleigh, for the State.

Geo. Ward Hendon, Hendon & Carson, Asheville, for defendant.

BRANCH, Justice.

Defendant assigns as error the trial court's denial of his motion to quash the bill of indictment.

The bill of indictment shows the following endorsement: "Those marked X sworn by the undersigned foreman and examined before the Grand Jury, and this bill found X A True Bill."

Defendant argues that the insertion of the letter "X" in the blank space after the word "found" and before the letter "A" indicates that the grand jury meant to return not a true bill. Defendant's sole authority is one of the many definitions of the letter "x" found in Webster's New International Dictionary, 2d Ed., Unabridged, 1961 (1951), to wit: "A wrong statement, answer, result or the like; a mistake; an error." We note in passing that the 3rd Edition of the same dictionary, 1961, also defines "x" as "used to indicate choice or approval (as on a ballot)."

When a bill of indictment in a capital case has been returned in open court by a majority of the grand jury as a true bill, and the action of the grand jury is duly recorded in the court's records, the lack of endorsement on the bill will not support a motion to quash. G.S. § 15-141; State v. Sultan, 142 N.C. 569, 54 S.E. 841; State v. Avant, 202 N.C. 680, 163 S.E. 806.

This record discloses that the grand jury in a body, seventeen members present and all assenting to the finding, returned, as a true bill the bill of indictment charging the defendant, John LeRoy Cox, with the offense of rape of a child under twelve years of age.

There is no merit to this assignment of error.

Defendant next contends that the trial court erred in ruling that Belinda Bess Hoey was competent to testify as a witness in the case.

When defendant's counsel challenged the competency of Belinda Bess Hoey to testify, the trial judge, in the absence of the jury, conducted an extensive voir dire hearing which included her testimony, testimony of her teachers, and testimony of members of her family. One of the teachers, Mrs. Gail Sutherland, described Bess as possessing average maturity for a child of her age, and stated that she had adjusted well in school. Mrs. Sutherland further testified that Bess' school work was satisfactory and that in her opinion Bess knew right from wrong.

Bess, among other things, testified:

"I go to church. As to where I go to church, (no response). I go to church with Mama Ruth and Papa Clyde. I go to Sunday School. I go to church with them. I know what happens to little boys or little girls who don't tell the truth. They get a whipping and go down, down, down. They go down where the devil is. I know who Jesus was. He was the Savior."

Judge Martin also questioned Bess at length as to the meaning of taking an oath, as to her ability to write, and as to her knowledge of colors. At the conclusion of the voir dire testimony, Judge Martin concluded:

"Well, on the evidence offered in the absence of the Jury concerning the competency of the witness Bess Hoey, this Court concludes as a matter of law that the witness does have the capacity to understand and relate under the obligations of an oath the facts which will assist the Jury in determining the truth of this case and that the witness has sufficient intelligence to give testimony or evidence in this case, and based upon those conclusions, the Court, in the exercise of its discretion, denies the defendant's objection to the witness, Bess Hoey, being allowed to testify and holds that she is competent as a witness in this case."

In the case of State v. Cooke, 278 N.C. 288, 179 S.E.2d 365, this Court considered the competency of a 7-year old girl to testify in a rape case and, in holding her to be a competent witness, stated:

"In McCurdy v. Ashley, 259 N.C. 619, 131 S.E.2d 321, Justice Parker (later, Chief Justice) quotes with approval from Wheeler v. United States, 159 U.S. 523, 16 S. Ct. 93, 40 L. Ed. 244 (in which a boy nearly five and one-half years old was held to be a competent witness in a murder case), as follows:

"``That the boy was not by reason of his youth, as a matter of law, absolutely disqualified as a witness, is clear. While no one would think of calling as a witness an infant only two or three years old, there is no precise age which determines the question of competency. This depends on the capacity and intelligence of the child, his appreciation of the difference between the truth and falsehood, as well as of his duty to tell the former. The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record, the decision of the trial judge will not be disturbed on review, unless from that which is preserved it is clear that it was erroneous. These rules have been settled by many decisions, and there seems to be no dissent among the recent authorities.'"

This Court again sustained the trial judge's finding that a 6-year old girl was a competent witness in a rape case in State v. Bowden, 272 N.C. 481, 158 S.E.2d 493. There the Court said:

". . . The trial judge observed the child's demeanor during the voir dire examination and cross-examination. The finding by Judge Martin that she was qualified to testify was supported by competent evidence. The question of the victim's competency to testify rested in the sound discretion of the trial court. McCurdy v. Ashley, 259 N.C. 619, 131 S.E.2d 321; State v. Merritt, 236 N.C. 363, 72 S.E.2d 754; State v. Jackson, 211 N.C. 202, 189 S.E. 510; State v. Satterfield, 207 N.C. 118, 176 S.E. 466."

Here there was ample competent evidence to support Judge Martin's finding that Belinda Bess Hoey was a competent witness in this case. The record shows no abuse of discretion by the Judge.

This assignment of error is overruled.

Defendant assigns as error the court's denial of his motion to suppress articles of bloody clothing worn by the prosecuting witness when she was taken to the hospital.

It is not contended that the clothing was not properly authenticated and identified.

This question was considered by this Court in the case of State v. Atkinson, 278 N.C. 168, 179 S.E.2d 410, and there the Court stated:

"Garments worn by the victim of a rape and murder showing the location of a wound upon the person of the deceased, or which otherwise corroborate the State's theory of the case, are competent. State v. Speller, 230 N.C. 345, 53 S.E.2d 294 (1949); State v. Fleming, 202 N.C. 512, 163 S.E. 453 (1932). When relevant, articles of clothing identified as worn by the victim at the time the crime was committed are always competent evidence, and their admission has been approved in many decisions of this Court. State v. Rogers, 275 N.C. 411, 168 S.E.2d 345 (1969); State v. Peele, 274 N.C. 106, 161 S.E.2d 568 (1968). See Stansbury, N.C. Evidence, (2d Ed., 1963), § 118."

See also State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241.

Obviously the bloodstained clothes are relevant to the State's theory that the prosecuting witness had been lacerated and torn during the process of being raped by defendant.

This assignment of error is overruled.

Finally, defendant contends that the court erred in sustaining the State's objections to testimony concerning statements made by the father of the prosecuting witness in her presence which related to sex, and that the trial judge erred in refusing to allow defendant's counsel to cross examine the father concerning such statements. Defendant in his brief states that he intended to show by this evidence that the prosecuting witness could have obtained knowledge of sexual matters from these alleged statements.

In this jurisdiction it is settled beyond question that consent is not a defense where one is accused of abusing or carnally knowing a female child under the age of twelve years. G.S. § 14-21; State v. Temple, 269 N.C. 57, 152 S.E.2d 206; State v. Crawford, 260 N.C. 548, 133 S.E.2d 232; State v. Strickland, 254 N.C. 658, 119 S.E.2d 781.

Admittedly, in the case of a prosecuting witness over the age of twelve years the general character of the prosecuting witness for unchastity may be shown for the purpose of attacking the credibility of her testimony, and has bearing upon the likelihood of her consent. State v. Grundler and State v. Jelly, 251 N.C. 177, 111 S.E.2d 1. In this case, such evidence would not be competent as bearing upon consent, and we do not think that the credibility of the testimony of this six-year old child would be impugned even if sexual matters had been discussed in her presence.

We are unable to find any legal basis for holding this evidence to be competent. Further, even had it been relevant and competent, we do not think that a different result would have been reached if the evidence had been admitted. State v. Temple, supra; State v. King, 225 N.C. 236, 34 S.E.2d 3.

A careful examination of this record reveals no prejudicial error.

No Error.