(Filed 19 May, 1920.)
1. Indictment — Rape — Two Offenses — Election — Courts Discretion.
Where two acts of the defendant are charged against him under an indictment for rape, the matter of the State electing as to one of them is within the sound discretion of the trial judge, and no abuse thereof appears when the two acts are mixed and dependent on each other, and under the attendant circumstances it would be impracticable to confine the prosecutor to one without seemingly destroying a prima facie case of guilt.
2. Rape — Criminal Law — Evidence — Questions for Jury — Nonsuit — Trials.
Held, the evidence in this action of rape is sufficient to be submitted to the jury, but not discussed as a new trial is awarded.
3. Instructions — Recital of Evidence — Statutes — Appeal and Error.
As to whether, under the circumstances of this case, the trial judge committed error in not sufficiently stating the evidence in the case to the jury as required by Rev., 535. Quaere? Brown, J., writing the principal opinion; Walker and Hoke, J. J., holding the view that a new trial should be granted upon the insufficiency of the evidence to convict of the charge of rape; and Allen, J., and Clark, C. J., dissenting upon the ground that the judge was not in error as to his statement of the evidence to the jury.
INDICTMENT for rape, tried before McElroy, J., at September Term, 1919, of FORSYTH.
Attorney-General Manning and Assistant Attorney-General Nash for the State.
Holton Holton, Sapp McKaughan, and Benbow, Hall Benbow for defendant.
WALKER and HOKE, JJ., concurring in part; ALLEN, J., dissenting; CLARK, C. J., concurring in the dissenting opinion.
There was a verdict of guilty, and sentence of death pronounced. Defendant appealed.
The defendant was convicted of the crime of rape committed upon the person of Bessie Conrad, a young girl about 18 years of age, who, if the evidence is to be believed, is a girl of good character and well known to defendant, who lived next door to her parents.
1. The evidence for the State disclosed that two acts of sexual intercourse, alleged to be rape, took place.
The defendant moved that the State be required to elect upon which it would rely for conviction.
The court overruled the motion.
S. v. Parish, 104 N.C. 679, is direct authority, it seems to us, sustaining the judge. The matter of election is committed to the sound discretion of the judge. The evidence of the two acts here is so mixed and dependent on each other, with its attending circumstances, that it would not be practicable to confine the prosecutor to one transaction without destroying what seems to be prima facie case of guilt against the defendant.
2. At close of the evidence defendant moved to nonsuit the State upon the ground that the evidence is insufficient to be submitted to the consideration of the jury.
The majority of the Court are of opinion that the motion was properly overruled, and that it was the duty of the judge to submit the evidence to the jury for their consideration. We will not discuss it, as there is to be another trial.
The court, in charging the jury, failed to state in a plain and correct manner the evidence given in the case, and in not declaring and explaining the law arising thereon. But, on the contrary, expressly stated: "Much testimony has been offered which I will not attempt to rehearse, as it is your province to remember the evidence, and it is your duty to weigh and believe or disbelieve it, in whole or in part, and if so, what part is respective of the contentions of the State and of the defendant. It is your duty to remember the evidence."
The case on appeal is signed by the judge, and the above exception is stated over his signature, and is duly assigned as error.
We think the exception is well taken.
It does not appear in the record that the learned judge attempted to state the evidence as required by the statute, and it does not appear that it was waived by defendant. Sec. 535 of the Revisal provides: that in charging the jury, the judge "shall state in a plain and correct manner the evidence given in the case, and declare and explain the law arising thereon."
This statutory requirement, enacted first in 1796 has been regarded as mandatory, and as imposing upon the judge a very important and necessary duty. The purpose of it is to aid the jury in remembering the evidence, although they are not bound by the judge's version of it, as well as to have the law made intelligible to the jury.
In S. v. Rogers, 93 N.C. 523, the Court says: "It is held as a general rule that an omission on the part of the judge to charge the jury on a certain point is not error unless he is requested to do so. But when the judge, in his charge, fails to state in a precise and correct manner the evidence given in the case, and explain the law arising thereon, as he is required to do so by sec. 413 of the Code, there is error. There are so many decisions in our reports construing this statute and pointing out the duty of the courts under its provisions that we are at a loss to conceive why a judge should fail to comply with its directions."
It is true that the defendant should have asked for specific instructions if he desired the case to be presented to the jury by the court in any particular view, but, as said by Mr. Justice Walker in Simmons v. Davenport, 140 N.C. 412, this rule "does not of course dispense with the requirement of the statute that the judge shall state in a plain and correct manner the material portions of the evidence given in the case, and explain the law arising thereon." But we do not mean to imply that the judge is obliged to repeat all the evidence to the jury. We bear in mind what is said by Judge Gaston in S. v. Haney, 19 N.C. 390: "The judge is not bound to recapitulate all the evidence to the jury; it is sufficient for him to direct their attention to the principal questions which they have to investigate, and to explain the law applicable to the case, and this particularly when he is not called upon by counsel to give a more full charge."
This is repeated and approved in Boon v. Murphy, 108 N.C. 191.
It is especially important for the benefit of the State as well as for the protection of the defendant that in the trial of capital felonies the requirements of the statute shall be carefully observed.