State v. Strickland , 254 N.C. 658 ( 1961 )

119 S.E.2d 781 (1961) 254 N.C. 658

STATE
v.
Albert STRICKLAND.

No. 436.

Supreme Court of North Carolina.

May 10, 1961.

Atty. Gen. Thomas W. Bruton, Asst. Atty. Gen. Harry W. McGalliard, for the State.

Earle R. Purser, Michael J. Rabil, Raleigh, for defendant appellant.

WINBORNE, Chief Justice.

The defendant brings forward twelve assignments of error. However only one is supported by an exception and set out in his brief. The remaining eleven are deemed abandoned. Rule 28 of the Rules of Practice in the Supreme Court, 221 N.C. 544, at page 562.

An assignment of error must be based upon an exception duly taken, in apt time, during the trial and preserved as required by the Rules of this Court. Rules 19(3) and 21. See 221 N.C. 544, supra, and State v. Moore, 222 N.C. 356, 23 S.E. 2d 31.

Exceptions in the record not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him. Rule 28 of the said Rules of Practice in the Supreme Court. See also State v. Walls, 211 N.C. 487, 191 S.E. 232; State v. Proctor, 213 N.C. 221, 195 S.E. 816; State v. Hightower, 226 N.C. 62, 36 S.E.2d 649.

Furthermore, the charge of the court to the jury does not appear in the record. Therefore, it will be presumed that the court correctly charged the jury as to the law arising upon the evidence as required by G.S. § 1-180. This Court has so held in numerous decisions when the charge does not appear in the record. State v. Harrison, 239 N.C. 659, 80 S.E.2d 481; State v. Phelps, 242 N.C. 540, 89 S.E.2d 132.

The sole question presented by the defendant in this case is whether or not the trial judge intimated an opinion to the jury, to the prejudice of the defendant as to the credibility of the prosecutrix and to the guilt of the defendant. The record shows the following transpired when the prosecutrix was testifying on direct examination: "I know Albert Strickland. I don't know if he is any kin to me. He is married to my mother. Last Christmas Eve day I was at home with my three sisters and ``Puddin'. I was there just before dinner that day with them. My mother was not at home at that time. She was gone to Zebulon to get some toys for Christmas. One of my sisters is five and one of them is just about two, and the other one is going into four. ``Puddin', a colored girl, was at home keeping us children. She was supposed to keep us but she left five minutes before Albert Strickland came in. I was sitting down holding my little baby sister in my arms when Albert Strickland came into the house. When he came into the home there, he asked me where was Mama. I told him she was in Zebulon getting toys. When I told him my mother was in Zebulon, he looked in the rooms. I can't remember if Albert Strickland looked under any of the beds in the rooms. Then he called me and carried me into the back room and he give me three or four licks with his belt."

"Question: (Solicitor) Did he tell you why he was whipping you? Answer: No.

"Question: (Solicitor) What did he say when he gave you the three or four licks? Answer: (No answer).

"The Court: Do you remember, Helen, whether he said anything when he hit you with the belt?" Exception No. 2.

"Answer: (No answer).

"Question: (Solicitor) Well, honey, after he hit you with the belt, what did he do then?"

Then the prosecutrix proceeded to testify as to the events immediately preceding the crime.

The appellant contends that the judge, by asking the question set out above, committed reversible error in that it tended to prejudice the defendant in the eyes of the jury and constituted an expression of opinion by the court as to the weight and sufficiency of the evidence. See G.S. § 1-180 and numerous cases annotated thereunder. Considering the question in context and in the light of the circumstances in which it was asked, the conclusion is that the presiding judge did not intimate or express an opinion to the jury which prejudiced the defendant. It is well settled in this State that the trial judge can ask questions of a witness in order to obtain a proper understanding and clarification of the witness' testimony. State v. Humbles, 241 N.C. 47, 84 S.E.2d 264; State v. Stevens, 244 N.C. 40, 92 S.E.2d 409; State v. Furley, 245 N.C. 219, 95 S.E.2d 448.

Moreover, it is well to note that the judge was talking to a nine-year old child who was describing a sordid and horrible crime. The judge simply made an effort to persuade the child to answer a proper question asked by the solicitor.

Notwithstanding failure to preserve exceptions to the denial of motions for judgment as of nonsuit, this Court deems it expedient to say: The statute, G.S. § 14-21, pertaining to the punishment for rape provides that "Every person who is convicted of ravishing and carnally knowing any female of the age of twelve years or more by force and against her will, or who is convicted of unlawfully and carnally knowing and abusing any female child under the age of twelve years, shall suffer death: Provided, if the jury shall so recommend at the time of rendering its verdict in open court, the punishment shall be imprisonment for life in the State's prison, and the court shall so instruct the jury."

Under the first clause of this statute, relating to ravishing and carnally knowing of a female person who is of the age of twelve years or more, the elements of force and lack of consent must be alleged and proven before a conviction can be had on which a death sentence may be imposed.

On the other hand, under the second clause of the statute relating to unlawfully and carnally knowing and abusing any female child under the age of twelve years, neither force nor lack of consent need be alleged or proven, and such child is by virtue of the statute presumed incapable of consenting. See State v. Johnson, 226 N.C. 266, 37 S.E.2d 678.

In the instant case the defendant is indicted under the second clause of G.S. § 14-21, that is for unlawfully and carnally knowing and abusing a named female child under the age of twelve years. Hence neither force nor lack of consent need be alleged or proven. The child is by virtue of the statute presumed incapable of consenting. And the evidence offered is abundantly sufficient to take the case to the jury and to support the verdict of rape within the purview of the statute G.S. § 14-21.

Indeed, careful consideration of the whole case on appeal and the record proper fails to show error. Hence the judgment will be, and is hereby affirmed—there being

No error.