Summary
In State v. Courtney, 248 N.C. 447, 103 S.E.2d 861 (1958), the indictment was for rape (only one degree of that crime being then recognized under the law of this State) and it did not allege the age of the defendant.
Summary of this case from State v. PerryOpinion
Filed 4 June, 1958.
1. Assault and Battery 17: Rape 28 — A verdict of guilty of assault on a female is a permissible verdict under an indictment for rape.
2. Assault and Battery 4 — G.S. 14-33 relates only to punishment and creates no new offense.
3. Assault and Battery 7 — In a prosecution of a male person for assault upon a female, the presumption is that the defendant is over 18 years of age, with the burden upon defendant to show as a matter of defense, relevant solely to punishment, that he was not over 18 years of age at the time the offense was committed, if this be the case.
4. Assault and Battery 11 — An indictment for assault upon a female need not charge that the defendant was over 18 years of age at the time of the alleged assault in order to support punishment as for a general misdemeanor, since the age of the defendant is no part of the offense but relates solely to punishment.
5. Indictment and Warrant 9 — An indictment must allege every essential element of the offense it purports to charge.
6. Criminal Law 32 — A plea of not guilty puts in issue every essential element of the crime charged.
7. Assault and Battery 12 — Where the indictment contains no averment that defendant was over 18 years of age at the time of the alleged assault, defendant's plea of not guilty, without more, does not put in issue whether he was over 18 years of age at the time the offense was committed.
8. Assault and Battery 17 — Ordinarily, whether a defendant was over 18 years of age at the time the offense was committed, so as to warrant punishment as for a general misdemeanor upon conviction of defendant of assault upon a female, is for the determination of the jury and not the court, and may be appropriately determined upon a separate issue, with presumption the the defendant was over 18 years of age being evidence for the consideration of the jury upon the question.
9. Same — When a male defendant, during the progress of his trial on an indictment charging an assault on a female or a more serious crime embracing the charge of assault on a female, testifies that he was more than 18 years of age at the time of the assault, find there is no evidence or contention to the contrary, the collateral issue as to defendant's age need not be submitted to or answered by the jury in order for the verdict of guilty of assault upon a female to warrant punishment as for a general misdemeanor. S. v. Grimes, 226 N.C. 523, modified to this extent.
APPEAL by defendant from Pless, J., December 2, 1957, Regular Criminal Term, of MECKLENBURG.
Attorney-General Patton and Assistant Attorney-General McGalliard, for the State.
Amon M. Butler, James B. Ledford and L. Glen Ledford for defendant, appellant.
PARKER, J., dissenting.
HIGGINS, J., concurs in dissent
Criminal prosecution on indictment charging that defendant, on the 7th day of November, 1957, "did unlawfully, wilfully, and feloniously rape, ravish and carnally know Shirley Allen, a female, forcibly and against her will," etc.
Verdict: "Guilty of assault on a female."
Judgment, imposing a prison sentence of not less than 12 nor more than 18 months, was pronounced.
Defendant excepted and appealed.
The only exceptive assignment of error is that the verdict does not support the judgment. Defendant contends that, since there was no jury finding that he was a man or boy over 18 years of age at the time of the alleged assault, the maximum legal sentence was a fine not in excess of $50.00 or imprisonment for a term not in excess of 30 days.
According to the agreed case on appeal, the undisputed evidence was that the alleged assault occurred November 7, 1957, the date alleged; and defendant testified (December 2, 1957), on direct examination by his own counsel: "I am 19 years old . . . . Yes, I was in the armed services for 17 months and 25 days. I have an honorable discharge."
The precise question is whether, under these circumstances, defendant's testimony as to his age eliminated the necessity for a jury determination that he was over 18 years of age at the time of the alleged assault.
The verdict, "Guilty of assault on a female," was a permissible verdict and was accepted. Decisions to the effect that when a jury returns an informal, insensible, or a repugnant verdict, or one that is not responsive to the issues submitted, they may be directed by the court to retire and reconsider the matter and bring in a proper verdict do not apply. See S. v. Gatlin, 241 N.C. 175, 84 S.E.2d 880; S. v. Perry 225 N.C. 174, 33 S.E.2d 869. Defendant does not challenge the acceptance of the verdict or any other feature of the trial.
It is noted further that we are not concerned with a situation such as that considered in S. v. Brown, ante, 311, 103 S.E.2d 341, and classes cited, where the verdict returned and accepted was insufficient to support the pronouncement of any judgment.
Section 3620, Revisal of 1905, provided: "Assault, punishment for. In all cases of an assault, with or without intent to kill or injure, the person convicted shall be punished by fine or imprisonment, or both, at the discretion of the court: Provided, that where no deadly weapon has been used and no serious damage done, the punishment in assaults, assaults and batteries, and affrays, shall not exceed a fine of fifty dollars or imprisonment for thirty days; but this proviso shall not apply to cases of assault with intent to kill, or with intent to commit rape."
By Chapter 193, Public Laws of 1911, the General Assembly amended said Section 3620 by adding at the end thereof the following: "or to cases of assault or assault and battery by any man or boy over eighteen years of age on any female person." As so amended, said Section 3620 was brought forward and codified as Section 4215, Consolidated Statutes of 1919.
CS 4215 was amended by Chapter 189, Public Laws of 1933, relating to the competency of communicated threats in certain assault cases where the defendant's plea is self-defense. As so amended, CS 4215 was brought forward and codified as Section 14-33, General Statutes (Volume 1) of 1943. Section 14-33, General Statutes of 1943, was rewritten by Chapter 298, Session Laws of 1949; and as rewritten the relevant statutory provisions are now codified as Section 14-33 of the General Statutes (Volume 1B) as recompiled in 1953.
Ch. 193, Public Laws of 1911, amending Revisal, Sec. 3620, was first construed in S. v. Smith, 157 N.C. 578, 72 S.E. 853. The indictment, which contained no allegation as to the defendant's age, was for an assault with intent to commit rape. The verdict was, guilty of "assault and battery on Lillian Whitson — the defendant Turner Smith being over eighteen years of age." The judgment imposed a 2-year prison sentence. After serving thirty days, the defendant, in habeas corpus proceedings, urged as ground for immediate discharge that, absent an allegation that he was more than eighteen years old, the maximum lawful sentence was thirty days. This Court found no error in the order discharging the writ and remanding the petitioner to custody.
These specific holdings in S. v. Smith, supra, have been followed consistently by this Court:
1. The said 1911 Act "was not intended to create a separate and distinct offense in law, to be known as an assault and battery by a man, or boy over eighteen years of age, upon a woman," for "it was always a crime for a man, or a boy over eighteen years of age, to assault a woman." As stated succinctly by Barnhill, J., (later C.J.), in S. v. Jackson, 226 N.C. 66, 36 S.E.2d 706: "G.S. 14-33 creates no new offense. It relates only to punishment."
2. The presumption is that the male person charged is over 18 years of age; and the fact, if it be a fact, that he is not over 18 years of age, relevant solely to punishment, is a matter of defense. S. v. Lewis, 224 N.C. 774, 32 S.E.2d 334, and cases cited. In S. v. Morgan, 225 N.C. 549, 35 S.E.2d 621, and in S. v. Herring, 226 N.C. 213, 37 S.E.2d 319, it is stated that the burden of establishing this defense rests on the defendant.
3. Since it is not an essential element of the criminal offense, it is not required that the indictment allege that the defendant was a male person over 18 years of age at the time of the alleged assault. S. v. Jones, 181 N.C. 546, 106 S.E. 817; S. v. Lefler, 202 N.C. 700, 163 S.E. 873.
Prerequisite to its validity, an indictment must allege every essential element of the criminal offense it purports to charge. S. v. Jordan, 247 N.C. 253, 100 S.E.2d 497; S. v. Greer, 238 N.C. 325, 77 S.E.2d 917, and cases cited; 27 Am. Jur., Indictments and Information Sec. 54; 42 C.J.S., Indictments and Information Sec. 100.
A plea of not guilty puts in issue every essential element of the crime charged. S. v. McLamb, 235 N.C. 251, 256, 69 S.E.2d 537, and cases cited; 14 Am. Jur., Criminal Law Sec. 268; 22 C.J.S., Criminal Law Sec. 454.
Although not an essential averment, if in fact the indictment charges that the defendant is a male person over the age of 18 years, as in S. v. Lewis, supra, and other cases, it may be considered, nothing else appearing, that the defendant's plea of not guilty is a denial of this nonessential averment; but where as here the indictment does not so charge it cannot be said that the defendant, simply by his plea of not guilty, puts in issue whether he was over 18 years of age at the time of the alleged assault.
In S. v. Lefler, supra, Adams, J., quotes the following from S. v. Smith, supra: "It is best, and certainly safe, that the court should require the jury under a special issue submitted to find the facts necessary to determine the grade of the punishment; . . . and if it is found that he (the man or boy) was over eighteen years of age at the time the offense was committed, he may be punished as for an aggravated assault, whether his age is stated in the indictment or not." Whether a deadly weapon was used, whether serious damage was done, whether there was an intent to kill, whether there was an intent to commit rape, relate directly to the defendant's conduct in relation to the alleged assault; but whether he was then a man or boy over 18 years of age relates solely to the defendant's personal status at the time of the alleged assault.
Whether defendant was over 18 years of age is a collateral matter, wholly independent of defendant's guilt or innocence in respect of the assault charged; and it would seem appropriate, as pointed out by Walker, J., in S. v. Smith, supra, that this be determined "under a special issue." Unless the necessity therefor is eliminated by defendant's admission, this issue must be resolved by a jury, not by the court. S. v. Lefler supra; S. v. Grimes, 226 N.C. 523, 39 S.E.2d 394; S. v. Terry, 236 N.C. 222, 72 S.E.2d 423. And, upon the trial of such issue, the presumption that defendant was over 18 years of age at the time of the alleged assault is evidence for consideration by the jury. S. v. Lefler, supra; S. v. Lewis, supra; S. v. Grimes, supra.
Appellant relies principally on S. v. Grimes, supra; and candor compels the admission that this decision, based largely on S. v. Lefler, supra, tends in some measure to support his contention.
In S. v. Lefler, supra, the indictment did not charge that the defendant was a male person over the age of 18 years, but did charge that he "did unlawfully, wilfully and feloniously beat and would one Dora Shoe, she being a female, by throwing her body upon the Bank of South Yadkin River, and thereby seriously and permanently injuring the said Dora Shoe . . ." The jury's verdict was "Guilty of simple assault." The judgment imposed a prison sentence of 12 months.
Neither the evidence nor the judge's charge was included in the record on appeal. Absent the evidence and charge, this Court surmised that the verdict "signified an assault without the use of a deadly weapon or without the infliction of serious injury." Whether the defendant, during the trial, contended that he was not over 18 years of age, does not appear; nor does it appear that the court, in instructing the jury, submitted for their consideration and determination whether defendant was over 18 years of age at the time of the alleged assault. It would appear that the skeleton record on appeal caused such uncertainty as to the significance of the verdict as to cause this Court, "in the absence of a finding as to the defendant's age," to award a new trial.
In S. v. Grimes, supra, the defendant was first tried in the Recorder's Court and thereafter in superior court on a warrant charging simply that he unlawfully and wilfully assaulted Mrs. J.C. Perkins, a female. The State's evidence tended to show that defendant, on a Rocky Mount Street, at nighttime, beat Mrs. Perkins and caused her face to bleed. The defendant testified, denying that he was in any way involved in the alleged assault. While he did not testify directly as to his age, he did testify that he had been in the Maritime Service of the United States Government for five or more years. The jury returned a verdict of "Guilty of an assault on a female as charged in the warrant." After verdict, the court, over defendant's objection, allowed the solicitor's motion to amend the warrant so as to charge that defendant was "a male person over the age of 18 years"; and thereupon the court imposed a prison sentence of 18 months.
The opinion by Stacy, C.J., states: "Hence, to take the case out of the general rule and place it in the exception, the jury should determine in its verdict, specifically or by reference to the charge, the circumstances of aggravation which make the offense a general misdemeanor. S. v. Lefler, supra; S. v. Lewis, supra." (Our italics) (Note: "Charge" is used in the sense of accusation by warrant or indictment, not in the sense of instructions to the jury.) The opinion concludes: "There was no error in allowing the solicitor to amend the warrant, as this was a matter resting in the sound discretion of the trial court. S. v. Brown, 225 N.C. 22, 33 S.E.2d 121. Coming as it did, However, after verdict, the amendment was ineffectual to supply the deficiency of the jury's finding. So, conforming to the precedent of the Lefler case, supra, the present cause will be remanded for another hearing. Venire de novo."
The ruling that the court had the power, in its discretion, to allow said amendment to the warrant implied that the warrant as amended did not charge a different criminal offense from that of which the defendant had been convicted in the Recorder's Court. S. v. Cooke, 246 N.C. 518, 98 S.E.2d 885, and cases cited.
In S. v. Grimes, supra, the verdict established that the defendant was guilty of the criminal offense charged in the warrant, to wit, an assault on a female. Assume that, absent an admission that he was over 18 years of age at the time of the alleged assault, punishment for a general misdemeanor could not be imposed unless and until a jury found that he was over 18 years of age. Ordinarily, the illegality of the judgment does not vacate the verdict; but the established practice is to set aside the judgment and remand the cause for proper judgment on the verdict. S. v. Robinson, 245 N.C. 10, 95 S.E.2d 126, and cases cited; S. v. Graham, 224 N.C. 347, 30 S.E.2d 151; S. v. Tyson, 223 N.C. 492, 27 S.E.2d 113; S. v. Palmer, 212 N.C. 10, 192 S.E. 896; S. v. Smith, 174 N.C. 804, 93 S.E. 910.
It seems appropriate to call attention to the cases discussed below.
In S. v. Stokes, 181 N.C. 539, 106 S.E. 763, the indictment charged that defendant assaulted one Jessie Brown, "she being a female over the age of eighteen years of age." It did not allege that the defendant was a male person or that he was over eighteen years of age. Upon defendant's plea of "guilty of assault on a female," a prison sentence of three months was imposed. This Court found no error in the judgment.
In S. v. Jones, 181 N.C. 546, 106 S.E. 817, where the indictment charged an assault with intent to commit rape, the jury returned a verdict of "Guilty of an assault on a female." The judgment imposed a prison sentence of two years. The defendant excepted and moved to arrest the judgment on the ground that the bill did not allege that he was a male person over 18 years of age. Commenting on this exception, Hoke, J. (later C.J.) said: "The proof clearly showed that the defendant was over eighteen at the time of the alleged assault, and on the trial no question was made as to that fact." The opinion concludes: "On the record, there has been no error shown that would justify the Court in disturbing the results of the trial, and the judgment of the court below is affirmed."
In S. v. Kiziah, 217 N.C. 399, 8 S.E.2d 474, the indictment was for rape. It was not alleged that defendants were male persons over the age of 18 years. The verdict was "Guilty of assault upon a female." The judgment, as to each defendant, imposed a prison sentence of 18 months. Both defendants were married men. One defendant testified that his codefendant was 25 years of age. This Court found no error, specifically holding that the instructions to the jury, which did not refer to the age of either defendant, were correct.
In S. v. Morgan, 255 N.C. 549, 35 S.E.2d 621, the indictment was for an assault with intent to commit rape. The jury returned a verdict of "Guilty of an assault on a female, he being a male person over the age of 18 years," and judgment imposing a prison sentence of 18 months was pronounced. The defendant excepted to the court's refusal to give this special instruction: ". . . if you should find that there was no intent to commit rape, and no deadly weapon used and no serious bodily harm done, you may return a verdict of a simple assault." After noting that this request for special instruction was not made in apt time, Schenck, J., stated that the exception to the failure to give such instruction was untenable "for the further reason that all the evidence, both of the State and of the defendant, was to the effect that the person assaulted was a female and the defendant was a male person. The burden of showing that the defendant was under 18 years of age is a defense and rested on the defendant. S. v. Smith, 157 N.C. 578, 72 S.E. 853. There was no evidence to this effect, and for this additional reason the court was not required to give same."
In S. v. Jackson, supra, in separate indictments, it was charged that defendant, a male person over 18 years of age, did assault (1) Mrs. Earl Walker, a female person, and (2) Mrs. E.L. Jackson, a female person. A nol. pros. was entered to the indictment charging that defendant assaulted Mrs. Jackson. To the indictment charging that defendant assaulted Mrs. Walker, the defendant tendered and the court accepted a plea of guilty of simple assault. The judgment imposed a prison sentence of two years, "suspended upon payment of $100.00 into the Office of Clerk of Superior Court for use and benefit of wife and $50.00 on the 25th of September and monthly thereafter." Upon appeal, the judgment was stricken and the cause remanded for proper judgment. Decision was not predicated on the fact that the judgment imposed a prison sentence of two years but on the ground that the defendant, having excepted to the judgment and appealed therefrom did not consent to the conditions upon which the sentence was suspended.
In S. v. Dickey, 228 N.C. 788, 44 S.E.2d 207, the defendants, in separate bills of indictment, were charged with assault with intent to commit rape. As to defendant Logan, the verdict was "Guilty of an assault on a female." As to defendant Logan, the judgment imposed a prison sentence of "not less than 12 nor more than 18 months." The record contained no evidence as to the age of defendant Logan. This Court found no error in the judgment.
In S. v. Grimes, supra, referring to the Stokes, Jones, Morgan and Jackson cases, the opinion makes two observations: (1) that the question then considered "was not in focus, or mooted," in said cases; and (2) that "in all these cases the bills were for more serious offenses or more aggravated assaults."
In S. v. Faison, 246 N.C. 121, 97 S.E.2d 447, where defendant was tried upon an indictment charging assault on a female with intent to commit rape, he, the defendant, being a male person over the age of 18 years, the jury's verdict was "Guilty of an assault on a female." A prison sentence of two years was imposed. The defendant did not testify. According to the State's evidence, he was a hotel waiter; but, except as the evidence relating to his employment and conduct implied, there was no testimony as to his age. A prison sentence of two years was imposed. In a per curiam opinion, this Court found no error.
In S. v. Robbins, 246 N.C. 332, 98 S.E.2d 309, where defendant was tried upon an indictment charging assault with intent to commit rape, the jury's verdict was "Guilty of assault upon a female." A prison sentence of two years was imposed. In the trial, defendant testified he was 24 years of age. This Court, in opinion by Winborne, C.J., held there was no error "in the judgment from which appeal is taken."
In the Faison and Robbins cases, and in the Stokes, Jones, Kiziah, Morgan, Jackson and Dickey cases, referred to above, the defendant did not assign as error the jury's failure to make a specific finding that the defendant was a man or boy over 18 years of age. Even so, the established practice of this Court is to take notice, ex mero motu, of defects appearing on the face of the record proper; and the verdict and judgment are essential parts of the record proper. G.S. 7-11; Gibson v. Insurance Co., 232 N.C. 712, 62 S.E.2d 320, and cases cited. Here, as in S. v. Robbins, supra, the defendant, testifying at the trial, stated that he was over 18 years of age. There was no evidence or contention to the contrary. He does not now contend that he was not over 18 years of age at the time of the alleged assault nor does he seek a jury determination of that issue. He contends that, although the verdict should stand, the judgment imposing the prison sentence of 12-18 months is unlawful; and that the cause should be remanded for a judgment imposing a fine not exceeding $50.00 or imprisonment not exceeding 30 days; and the sole reason assigned is that the jury failed to make a specific finding on the uncontroverted collateral issue relating to his age.
Under the circumstances, we think that the collateral issue as to his age was eliminated by his own testimony. For present purposes, it is sufficient to say that the unqualified statements (quoted above) in S. v. Grimes, supra, are modified to this extent, namely, than when a male defendant, during the progress of his trial on an indictment charging an assault on a female or a more serious crime embracing the charge of assault on a female, testifies that he was over 18 years of age at the time of the alleged assault and there is no evidence or contention to the contrary, the collateral issue as to defendant's age need not be submitted to or answered by the jury. His testimony, under such circumstances, relating to such collateral issue, relevant solely to punishment, must be considered an admission on which the court may rely in the trial of the cause and in pronouncing judgment.
No error.