State v. Harris

BOBBITT, Chief Justice.

Defendant’s appellate counsel concedes, and rightly so, that defendant’s motion for judgment as in case of nonsuit was properly overruled. The State’s unequivocal and uncontradicted evidence was amply sufficient to support the verdict of guilty as charged.

In pronouncing judgment Judge McKinnon publicly commended Mr. Collins for his responsible action as a citizen in affording protection to Annie Lee Harvey from defendant and defendant’s companion in crime, thereby saving her from being the victim of actual rape and possibly saving defendant from a sentence of death or life imprisonment. We endorse Judge McKinnon’s appropriate and timely remarks. The chase, overtaking and seizure of defendant by Collins at or near the scene of the crime eliminated all uncertainty as to the identity of defendant as one of the assailants.

As noted the State’s evidence includes testimony that defendant, after Collins’ intervention, picked up and ran away with Annie Lee Harvey’s pocketbook. Although no exception was taken to the charge, it seems appropriate to mention that Judge McKinnon instructed the jury they could return (1) a verdict of guilty of assault with intent to commit rape as charged, or (2) guilty of an assault on a female, he being a male person over the age of eighteen years, or (3) a verdict of not guilty. Careful to afford defendant every possible right, Judge McKin-non instructed the jury as follows: “If you find that he (defendant) made an assault on her (Annie Lee Harvey) but you find that his intent was to steal her pocketbook and not to rape her, then Ee would not be guilty of the felony charge, although he would be guilty of an assault on a female.” Understandably, the jury rejected this view of defendant’s conduct.

Defendant asserts the prison sentence of not less than twelve nor more than fifteen years constitutes cruel and unusual punishment in violation of Article I, Section 14, of the Constitution of North Carolina, and the Eighth Amendment to the Constitution of the United States.

As a basis for this contention, defendant asserts that the felony created by G.S. 14-22 is a lesser included offense of the felony created by G.S. 14-26.

G.S. 14-22 provides: “Every person convicted of an assault with intent to commit a rape upon the body of any female shall be imprisoned in the State’s prison not less than one nor more than fifteen years.”

G.S. 14-26 in pertinent part provides: “If any male person shall carnally know or abuse any female child, over twelve and under sixteen years of age, who has never before had sexual intercourse with any person, he shall be guilty of a felony and shall be fined or imprisoned in the discretion of the court. ” Authoritative decisions of this Court hold that imprisonment for ten years is the maximum permissible punishment for a violation of G.S. 14-26. State v. Blackmon, 260 N.C. 352, 132 S.E. 2d 880; State v. Grice, 265 N.C. 587, 144 S.E. 2d 659.

The differences between these statutes are set forth in detail by Chief Justice Parker in McClure v. State, 267 N.C. 212, 214-215, 148 S.E. 2d 15, 17. Repetition is unnecessary. The decision of this Court was stated succinctly by Chief Justice Parker as follows: “The felony set forth in G.S. 14-22 is not a less degree of the felony set forth in G.S. 14-26.”

Defendant calls attention to Cannon v. Gladden, 281 P. 2d 233 (1955), where the Supreme Court of Oregon held the portion of an Oregon statute authorizing the punishment of life imprisonment for the offense of assault with intent to commit rape was null and void as violative of the constitutional provision against cruel and unusual punishment. Another Oregon statute provided for a maximum sentence of not more than twenty years for either statutory or forcible rape. It was held that the penalty of life imprisonment for the assault was so disproportionate as to shock the moral sense of all reasonable men as to what is right and proper when the greater crime of rape was punishable by a sentence of not more than twenty years. North Carolina statutes are quite different. Rape is punishable by death or life imprisonment. Assault with intent to commit rape is punishable by imprisonment for a term of not less than one nor more than fifteen years.

While we approve the diligence of defendant’s' counsel, the conclusion reached is that the trial conducted by Judge McKin-non is altogether free from prejudicial error. Accordingly, the verdict and judgment will not be disturbed.

No error.