State v. Miller

151 S.E.2d 47 (1966) 268 N.C. 532

STATE
v.
Marshall MILLER, Ray Pennell, Thomas Humphries, Ernest Morris and Melvin Morris.

No. 415.

Supreme Court of North Carolina.

November 23, 1966.

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

Watkins & Edmundson, by William T. Watkins, Oxford, for defendant appellants.

HIGGINS, Justice.

The critical issue in this case is whether the acts of intercourse (which the witness and all defendants admitted) were by force and against the will of Ribbie Parham as she testified, or with her consent as each of the defendants testified. The jury heard the witnesses and observed their demeanor, and returned verdicts "guilty of assault with intent to commit rape." The verdicts are conclusive unless the court, during the trial, committed prejudicial error.

The court instructed the jury to consider five possible verdicts: (1) rape; (2) rape with a recommendation that punishment should be imprisonment for life; (3) assault with intent to commit rape; (4) assault on a female; (5) not guilty. The jury returned a separate verdict as to each defendant. When asked the verdict as to Marshall Miller, the foreman replied: "He is guilty of assault on a female, No. 3." After clarifying statements by the court, and after the court had ascertained that all jurors had agreed, as to each defendant, the jurors stated they found each defendant "guilty of an assault with intent to commit rape." The verdict as to the defendant Miller was challenged by Assignment of Error No. 9. While at first there was some confusion, the court was careful to have the verdict ascertained, returned, and recorded as the jury had found it. That is, "guilty of assault with intent to commit rape."

The evidence required the court to instruct the jury under what findings of fact guilty verdicts could be rendered and of what offense. Likewise, the court charged that failure to find guilt beyond a reasonable doubt required a verdict of not guilty. The defendants contend the evidence was insufficient to permit a guilty verdict on any count and that the court committed error in failing to direct a general verdict of not guilty. The court gave clear and explicit instructions as to the rules of law applicable to the facts as the jury might find them to be from the evidence. The charge was correct. State v. Carter, 265 N.C. 626, 144 S.E.2d 826.

The defendants' version of this episode is certainly unappealing. Ernest Morris, in the presence of Ray Pennell, fraudulently obtained the mother's consent for Ribbie Parham, age 17, to baby sit for him while he took his wife to the hospital. Instead, the two took Ribbie to the automobile where the other defendants were sitting. The five, all drinking, kept this immature girl out until six o'clock in the morning, then left her at home in tears to face her mother. This record does not disclose any reason to believe another jury would have more sympathy for such conduct. There is a chance it might have less.

No error.