State v. . Jordan ( 1892 )

The prisoners are charged in the first count of the indictment with a rape committed upon the prosecutrix; and, in a second count, one of them is charged with being present, aiding and abetting the other to perpetrate the offense.

Upon the plea of not guilty, there was a verdict of guilty, and a motion in arrest of judgment upon the ground that the indictment charged that the prisoners jointly committed the offense. The court overruled the motion, and the prisoners excepted.

The prosecutrix was examined as a witness before the committing magistrate, and the latter reduced her evidence to writing, as she gave it. She was afterwards examined as a witness on the trial in the Superior Court. In order to contradict and discredit her the defendants proposed to ask the witness (the committing magistrate) if he did not hear the prosecutrix say, at the trial before him, in answer to a question asked her by the defendant Joe Jordan, that her husband told her to let him, the said Joe Jordan, have intercourse with her while he had hold of her. The witness testified that the proceedings were in his handwriting, and he was certain that what was there written was a true statement of what occurred before him at the trial. After objection to the evidence by the State, he was cautioned by the court that he might refresh his memory from the papers, and then testify from his memory, but that he could not simply read the papers. The witness said, while he was certain as to the truth of what was in the papers, which he had written at the time of the trial, he could not remember what the prosecutrix said, except from the papers in his hands. The court told him he could not read from the papers. The defendants thereupon proposed to offer the paper in evidence to show what the prosecutrix did say, (493) in order to contradict and discredit her. This was excluded by the court. The defendant excepted. The evidence was not signed.

The other material facts are stated in the opinion.

From the judgment of death, the prisoners appealed. The indictment is sufficient, and the court properly denied the motion in arrest of judgment. Two or more men may commit the single crime of rape by being present, aiding and abetting the actual ravisher in the perpetration of the offense. At the common law, all such offenders are equally principals and alike participate in the crime and guilt. They may, therefore, all be indicted together in the same manner as the one who directly does the injury. The statute of this State in respect to rape does not change or modify the common law as to persons present, aiding and abetting in the perpetration of that crime. Hale Pl. Cr., 269; 1 Bish. Cr. L., sec. 1090; Rex v. Folks, 1 Moody Cr. Cases, 354. The second count is unnecessary, and is no more than redundant matter. The evidence for the prosecution went to prove that both the prisoners actually ravished the prosecutrix, and that there were two distinct rapes — one by each of them — committed upon her; but it also went to prove that each of the prisoners was present aiding and abetting the other in the perpetration of the offense actually committed by him. There was evidence to prove that they were each guilty of both offenses. But this state of evidence did not affect the sufficiency of the indictment. The latter was sufficient, and there was evidence from which the jury might render a verdict of guilty upon it.

The assignment of error as to the exclusion of the evidence of the committing magistrate must be sustained. On the trial, the prosecutrix, testifying as a witness for the State, among other things, (494) said: "Then Jack held her husband while Dred raped her; that it was done violently, with force and intimidation, neither she nor her husband assenting thereto, and she had been sick ever since."

Each of the prisoners were examined as a witness for the defense, and admitted that he had had carnal knowledge of the prosecutrix at the time and place alleged, and "testified that she consented to sexual intercourse."

The prosecutrix had been examined as a witness before the committing magistrate. On the trial, the prisoners proposed to contradict and impeach her by showing that she testified before the magistrate on the preliminary examination "that her husband told her to let him, the said Jack (one of the prisoners), have intercourse with her while he had hold of her." That such was the purpose of the examination of the magistrate, and the introduction of the written evidence of the prosecutrix taken by him, sufficiently appears from the evidence of the prosecutrix above recited, the testimony of the prisoner just recited, and the questions put to the magistrate. It appears, from strong implication and inference, that the purpose was to contradict the prosecuting witness in the respect just mentioned.

The magistrate testified clearly that the written statement of the evidence of the prosecutrix, taken by him on the preliminary examination of the prisoners, was correct and true. It must be assumed that it would tend to show what the prisoners proposed to prove by it. Then, was that written statement competent evidence? We think it was competent for the purpose of showing, in some measure, that the prosecutrix had given, under oath, a different account of material facts connected with the rape charged, in her examination before the committing magistrate, from what she testified to on the trial, and thus to discredit her. The magistrate said he could not state on the strength of his recollection what she testified to before him, but he said that he (495) took her evidence down in writing, and he took it truly; that the written evidence before him was taken by him, and contained a correct and true statement of what she said. It is clear he might, if he could, have testified as to what she said before him. Then, if he could so testify, why was the written evidence, taken and identified by him as true, not competent? His memory in the lapse of time and from other causes might fail, but the true written statement could not change; it spoke the truth when it was offered in evidence as certainly as it did the day it was written. If it was taken truly, it was safer, stronger, more reliable than the unaided memory of any witness. It has been held by this Court, after much reflection, in S. v. Pierce, 91 N.C. 606, and Bryan v. Moring,94 N.C. 687, that the evidence of a witness reduced to writing and properly identified as correct and true is competent when pertinent and relevant on the trial of actions. Those cases were well considered, and we see no reason to modify them in the respect pertinent here. On the contrary, we again approve them. See, also,Davenport v. McKee, 94 N.C. 325.

It is to be observed that the purpose of the evidence excluded is not to contradict the prosecuting witness as to something merely collateral, but to show that she gave contradictory accounts of the very matter in question. It was not, therefore, necessary to ask the witness what she said on the preliminary examination before offering evidence of her contradictory statements. Jones v. Jones, 80 N.C. 246; S. v. Garland,95 N.C. 671; S. v. McQueen, 46 N.C. 177.

It is further to be observed that the written statement of the evidence of the prosecutrix was not offered as substantive evidence, as allowed in appropriate cases by the statute (The Code, sec. 1157). It was not sufficient for that purpose, because, as appears, it had not been taken in conformity with the statute. That it was not signed by the witness did not render it incompetent when offered as evidence in the present case. S. v. Pierce, supra; Bryan v. Moring, supra. (496)

The contradictory evidence was relevant and competent. The prisoners testified that the prosecutrix assented to their sexual intercourse with her. In view of their contention, if the husband, who was present at the time of the perpetration of the alleged rape, told the prosecutrix to have such intercourse with the prisoner Jordan, this would be some evidence of what was said and done, and it might have had some weight with the jury. But the contradictory statement was not offered to prove that the husband did so instruct his wife, but to discredit the wife as a witness by showing that she made the statement under oath at one time in one way, and a statement on the trial under oath just the reverse, as to what was said by her husband at the scene of the rape. The purpose was to satisfy the jury that she was unworthy of credit.

It is not sufficient to say that the evidence was unimportant. It was evidence the prisoners were entitled to have submitted to the jury, and it was their province to determine its weight in connection with other evidence before them. It is our province and our solemn duty to determine and apply the law.

The prisoners are entitled to a

New trial.

Cited: Bank v. Deposit Co., 128 N.C. 370; Trust Co. v. Benbow,135 N.C. 308; S. v. McKenzie, 166 N.C. 294.

(497)