Opinion
(January Term, 1867.)
For a conviction of rape, since the passage of the act of 1860-61, ch. 30, it is sufficient that the fact of penetration be established; and it is not required, to establish such fact, that the witness should use any particular form of words.
RAPE, tried before Buxton, J., at Fall Term, 1866, of the Superior Court of MECKLENBURG.
Attorney-General for the State. (232)
No counsel for prisoner.
The prosecutrix, who was a widow advanced in life, testified that the prisoner pursued her, seized her by the throat, threw her down and "acted with her as a man acts with his wife," and that he had "full connection" with her. The prisoner was a person of color. His counsel insisted to the jury that there was no sufficient proof of the fact of penetration, and asked the court to charge that such fact "must be directly and specifically proved, and could not be inferentially gathered from the evidence." The court refused so to charge, and the prisoner excepted.
Verdict, guilty; rule for new trial; rule discharged; judgment and appeal.
It was decided by this Court, in the case of S. v. Gray, 8 Jon., 170, that in an indictment under the Rev. Code, ch. 34, sec. 5, for carnally knowing and abusing an infant female under the age of ten years, there must be proof of the emission of seed, as well as of penetration in order to convict the offender. Immediately after that decision, and probably in consequence of it, the act of 1860-61, ch. 30, was passed, to change the rule of evidence in all cases of rape by providing that it shall not be necessary to prove the actual emission of seed, in order to constitute a carnal knowledge, but that the carnal knowledge shall be deemed complete upon the proof of penetration only.
The counsel for the prisoner contended on the trial in the court below, that the testimony introduced on the part of the State was insufficient to prove the fact of penetration, for the reason that such fact must be directly and specifically proved, and could not be inferentially gathered from the evidence."
It is not necessary for us to decide whether this proposition is correct or not, because we hold that if the prosecutrix were believed, she proved the penetration positively and unequivocally. The law did not require that she should use any particular form of words in stating that the prisoner had penetrated her body. Words are but the signs of ideas, and it is well known that the same idea may be communicated to a hearer in a variety of forms of expression. The language used by the prosecutrix was, as it seems to us, intended to convey to the jury the idea that the prisoner had had a complete carnal knowledge of her (233) body, which, of course, included penetration, and the jury must have so understood her. The question was fairly submitted to them by the court, and the prisoner has no just cause of complaint against their verdict.
Having examined the record and found no error in it, we direct that it be so certified to the Superior Court of law for the county of Mecklenburg.
PER CURIAM. There is no error.
Cited: S. v. Lance, 166 N.C. 413.