S. v. . Hairston , 121 N.C. 579 ( 1897 )

The facts are stated in the opinion.

The fourth exception, referred to in the opinion, was to the evidence of Dr. Schenck, who, for the purpose of showing penetration by the male defendant, and also to the fact that the prosecutrix was under 14 years of age, was allowed to testify that, upon examination of the prosecutrix, he had found the private parts torn, and that there were no signs of womanly development or of arrival of the age of puberty, which, he stated, was usually between 13 and 15 years of age.

(581) The sixth exception, referred to in the opinion, was to the refusal of his Honor to give instructions that were not asked for until after the State's solicitor had begun his concluding argument to the jury.

The seventh exception was to the instruction that if the defendant made the prosecutrix drunk and the male defendant had sexual intercourse with her, aided by the female defendant, who forcibly held the prosecutrix, both would be guilty.

The defendants were convicted of the lesser offense charged in the indictment, and were sentenced to imprisonment in the penitentiary, the male defendant for fifteen years and the female defendant for ten years. From this judgment the defendants appealed. The defendants were indicted under two counts — one for rape, under section 1101, Code, and the lesser offense of abusing and carnally knowing one Nellie Harris, a female child over 10 years of age and under 14, under chapter 295, Laws 1895. The evidence of the State tended to prove that the defendant Hairston and the defendant Lee, acting in concert, procured whiskey, got the prosecuting witness into a room, gave her whiskey until she was drunk, and that the defendant Lee helped to hold the prosecutrix while the defendant Hairston had sexual intercourse with her; that the prosecutrix was over 10 and under 14 years of age; that she was 12 years old. The defendants were convicted of the lesser offense, provided for in chapter 295, Laws 1895, and appealed, assigning the following errors:

The defendant introduced one Estelle Thomas, who testified that she knew the general character of the prosecutrix, and that it was bad. The defendant then asked the witness what was the character of (582) the prosecutrix for virtue. Objected to by the State and excluded, and the defendants excepted. This exception cannot be sustained, for two reasons: A party introducing a witness as to character can only prove the general character of the person asked about. The witness, of his own motion, may say in what respect it is good or bad. He may have to do this in justice to himself — in other words, to tell the truth; as, for instance, the party spoken of had a general good character for some things and a general bad character for other things; the witness could not truthfully say it was bad nor that it was good, without qualification; or the opposite party may, on cross-examination, test the witness by asking him as to what it is bad for, what it is good for, etc. S. v. Laxton,76 N.C. 216; S. v. Daniel, 87 N.C. 507. Neither is it stated what the defendant expected to prove. It may be supposed that they expected to prove it bad. But this Court should not be left to doubt and speculate as to what the defendants expected to prove.

Second exception: The defendants introduced a witness, Scott, and asked him if the prosecuting witness had not proposed to have sexual intercourse with him. This evidence was objected to by the State, and the court asked the counsel for the defendant if he excepted to follow this question by showing that Scott had intercourse with the prosecutrix, to which he answered that he did not, and the court excluded this evidence. We see no error in this ruling.

Third exception: The defendants' counsel, without permission of the court, had ordered the jailer to bring one Emma Bass, a prisoner then in the jail, to the courthouse, to be used as a witness; that after Emma had been examined by the defendants, the court ordered the jailer to take her back to jail. While we cannot approve of the course taken by defendants' counsel to get this witness out of jail, we do approve the order of the judge in sending her back to jail. This exception (583) cannot be sustained.

Fourth exception, as to Dr. Schenck's evidence, cannot be sustained. Nor can the fifth exception, as to the evidence of William Harper, as to her age, nor as to the Bible entries, as he swore that he knew the handwriting of Nellie's mother — that they were in her handwriting, and the mother had been dead seven years. This exception is overruled.

The sixth exception cannot be sustained. This has been so often decided by this Court that it would seem to need no citations to sustain the action of the Court. S. v. Rowe, 98 N.C. 629; Grubbs v. Ins. Co., 108 N.C. 472.

The seventh exception cannot be sustained, for the reason that it was a correct enunciation of the law, and for the further reason that the defendants have not been convicted of rape, to which this charge of the judge was applicable.

The eighth exception is that the judge told the jury that the punishment for rape was death, and that for the lesser offense charged in the indictment it was fine or imprisonment in the penitentiary. We have at this term approved the ruling of Judge Starbuck in refusing, at the request of the jury, to give this instruction, and we do not wish to be understood as approving it in this case. But what grounds the defendants have to object to it, we are unable to see. In all probability, it saved them from the gallows. The judgment is

Affirmed.

Cited: Marcom v. Adams, 122 N.C. 226; Craddock v. Barnes, 142 N.C. 99;S. v. Arnold, 146 N.C. 603; S. v. Wilson, 158 N.C. 601; Edwards v.Price, 162 N.C. 245; S. v. Lane, 166 N.C. 340; S. v. Melton, ib., 443.

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