Summary
holding evidence of victim's age, school, name use, and trial court's operative assumption of non-marriage sufficient to support rape conviction where nonmarriage an element
Summary of this case from State v. T.COpinion
(Filed 29 September, 1910.)
1. Affray — Verdict Directing — Evidence.
Upon a trial for an affray it is not error for the trial judge to refuse, upon motion of the defendant first named in the indictment, to direct a verdict in his favor upon the State's having introduced one witness and rested.
2. Affray — Evidence — Codefendant — Rebuttal.
After the State has introduced evidence and rested its case against the first defendant named in a bill of indictment for an affray, and his codefendant has testified to matters tending to incriminate him, he has the same right to introduce evidence in rebuttal as if his codefendant had been a State's witness against him.
APPEAL from Peebles, J., at August Term, 1910, of (601) FRANKLIN.
The facts are stated in the opinion.
Attorney-General for State.
W. M. Person and W. H. Yarborough, Jr., for defendant.
This was an indictment for an affray, and the defendant May alone was found guilty, and appeals.
The State introduced one witness and rested. The defendant May, whose name appeared first in the bill of indictment, without introducing evidence, moved the court to direct a verdict of not guilty. This was refused, the court saying that the evidence was not all in. In this there was no error.
The defendant Jackson then produced evidence, much of which tended to incriminate May. When Jackson rested, the defendant May offered himself and others as witnesses in rebuttal of the evidence offered for Jackson. The court was of an opinion that he had no right to do so, and refused to allow said May to testify himself or put on other witnesses. In charging the jury the court said, "The State further contends that you should believe that part of the evidence offered by Jackson in which the witnesses testified that May struck Jackson with his stick willingly, and that you should be satisfied beyond reasonable doubt from that evidence that the defendant May is guilty," and further, "If you find from all the evidence, beyond a reasonable doubt, that either or both of the prisoners are guilty, you should say so."
If the evidence offered by Jackson had been used only to acquit him the defendant May would have no ground to complain. But Jackson's evidence was competent against May, and was so used by the prosecution and was submitted to the jury by the judge to be considered against him.
It was therefore error not to permit May to reply to this evidence. He had not been "confronted" with these witnesses. It is true that as to new matter brought out by May, the defendant Jackson in turn would have been entitled to a reply. But this anomaly is due to the fact that the testimony of the defendants in an affray is usually hostile to each other. Indeed, in trials for an affray, the solicitor usually relies (602) upon the testimony of the defendants to convict each other.
The conduct of a trial is largely left to the discretion of the presiding judge. But when the State relied upon the evidence offered by the defendant Jackson to convict May, the latter had a right to offer evidence in reply to evidence with which he had not been confronted when the State rested. When the defendant May rested, no evidence which he cared to impeach had been introduced against him, and there was nothing which he cared to contradict. Hence he rested and waited for further evidence. "Where, on the trial of four defendants indicted for an affray, three of them testified, and the fourth, their antagonist, was called in his own behalf, the other defendants had the same right to impeach him on cross-examination as if he had been a witness instead of a codefendant." S. v. Goff, 117 N.C. 755.
Error.