{ "id": 11274961, "name": "STATE v. MONDS", "name_abbreviation": "State v. Monds", "decision_date": "1902-05-27", "docket_number": "", "first_page": "697", "last_page": "700", "citations": [ { "type": "official", "cite": "130 N.C. 697" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "65 N. C., 466", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1955243 ], "opinion_index": 0, "case_paths": [ "/nc/65/0466-01" ] } ], "analysis": { "cardinality": 382, "char_count": 6613, "ocr_confidence": 0.372, "pagerank": { "raw": 2.479810215776294e-07, "percentile": 0.8073988097375562 }, "sha256": "b4ff9ae4e775b026eb2299770b369451beab89963dd9ada01f1e2d32c15b252c", "simhash": "1:f78b33e14442f604", "word_count": 1144 }, "last_updated": "2023-07-14T15:31:43.301896+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. MONDS." ], "opinions": [ { "text": "Co OK, J.\nDefendant was tried and convicted upon a bill-of indictment drawn under Section 1101 of The Code, as amended by Act of 1895, Chap. 295, which, as amended, is as follows::\n\u201cEvery person who is convicted of ravishing and carnally knowing any female of the age of ten years or more, by force and against her will, or who is convicted of unlawfully and carnally knowing and abusing any female child under the age of ten years, shall suffer death. And every person who is convicted of unlawfully and carnally knowing, abusing any female child ten years old and under the age of fourteen, shall be guilty of a crime, and shall be punished by fine or imprisonment in the State Prison at the discretion of the Court, provided she has never before had sexual intercourse with any male person.\u201d\nFrom the evidence of the prosecuting witness, it appears that she was over ten and under fourteen years of age, and that she was willing to the intercourse; and that the exposure was made by two men, who happened to pass along the path and saw her and defendant in a compromising position on the ground in the bushes, having their attention attracted by hearing a \u201cnoise between a whine and a cry,\u201d and the barking of a dog, which caused them to jump up>, and they ran in different directions.\n\u25a0 His Honor intruded the jury \u201cthat if defendant attempted to have carnal knowledge of the prosecutrix with her consent, and before he accomplished his purpose he was intercepted and proceeded no further, then the defendant would not be guilty unless he injured and abused the genital organs of the prosecutrix; that the jury must find these facts from the evidence introduced, beyond a reasonable doubt before they can convict.\u201d The Court further charged \u201cthat unless the jury find from the evidence that defendant had actual sexual intercourse with the prosecutrix, that is, that he penetrated and had emission of seed in her person, he would not be guilty of carnally knowing her, and that there was no evidence that he had penetrated, * * * but if the jury find that defendant injured and abused her genital organs, beyond a reasonable doubt, then defendant would be guilty.\u201d Defendant excepted and appealed from tbe judgment pronounced.\nHis Honor erred in instructing tbe jury that tbe offense would be incomplete unless \u201cbe penetrated and bad emission of seed in her person.\u201d\n\u201cIt shall not be necessary upon tbe trial of any indictment for the offense of rape, carnally knowing and abusing any female child under ten years of age, * * * to prove the\nactual emission of seed in order to constitute tbe offense, but tbe offense shall be completed upon proof of penetration only.\u201d The Code, See. 1105; State v. Hargrove, 65 N. C., 466. As this part of tbe charge was more favorable to defendant than tbe law permits, he can not complain; but we deem it proper to rule upon it, lest our failure to1 do so would be misunderstood. The error\u2019, however, for which a new trial is granted, consists in charging that the crime would be complete, \u201cif the jury find that defendant injured and abused her genital organs.\u201d The female\u2019s age being over ten and under fourteen years, the indictment is drawn under the Act of 1895, which withdraws its protection from females, within that age, who have previously had sexual intercourse. With this exception, it does not materially differ from the former statute (Code, Sec. 1101) ; in the one it is * * * \u201ccarnally knowing and abusing;\u201d * * * in the other, it is \u201ccarnally knowing, abusing.\u201d * * * In the latter statute a \u201ccomma\u201d exists in lieu of the copulative conjunction \u201cand.\u201d By no known rule can we construe the comma to mean \u201cor\u201d so as to create a separate offense, and if we construe it as placing \u201cabusing\u201d in opposition with \u201cknowing,\u201d then we would have to hold that \u201cknowing\u201d was explained or characterized by \u201cabusing,\u201d which was clearly not intended by the Legislature. Therefore, in construing the amendment as a whole, in connection with the amended statute, we must .'hold that the Legislature did not intend to depart from its former* verbiage in extending the \u201cconsent\u201d limit. It seems \u2022clear to us that they both have the same meaning and the gravamen of the offense is the \u201cknowing\u201d \u2014 penetration with his person \u2014 without which there is no rape.\nThe \u201cabusing\u201d is no part of th'e common (or statute) law definition of rape. We first find it in the Statute of 18 Elizabeth, Chap. 1, when the \u201cabominable wickedness of carnally knowing and abusing any woman child under the age of ten years\u201d was made a felony without benefit of clergy; in which \u2022case the consent or non-consent is immaterial, as by reason of her tender years she is incapable of judgment and discretion.\nThe \u201cabusing\u201d construed with the \u201ccarnally knowing\u201d means the imposing upon, deflowering, degrading, ill-treating, \u2022debauching and ruining socially, as well as morally, perhaps, of the virgin of such tender years, who, when yielding willingly, does so in ignorance of the consequences and of her right and power\u2019 to resist. If the act be committed forcibly and against her will, it would be rape without reference to the statute. \u201cInjury\u201d of her genital organs might have occurred from the effort to penetrate, or in some other way; but the \u25a0statute does not declare it to be an element of the crime to injure or abuse the organs. T'o have injured the organs in some way other than by endeavoring to penetrate with his \u2022person, if done with her consent, though it would be abusing her, would not be a crime, because there was no act of carnal knowledge. But if the injury occurred against her will and intentionally, then it, the injury, would be embraced in the assault charged, for which he could be convicted.\nEor tire error in the charge above pointed out, a new trial is granted.\nNew Trial.", "type": "majority", "author": "Co OK, J." } ], "attorneys": [ "Robert D. Gilmer, Attorney-General, for the State.", "W. J. Leary, Sr., for the defendant." ], "corrections": "", "head_matter": "STATE v. MONDS.\n(Filed May 27, 1902.)\n1 RAPE \u2014 Emission\u2014The Code, Seo. 1101, Acts 1895. Chap. 295.\nIn rape the least penetration of the' person is sufficient, and the emission of seed is unnecessary.\n2. RAPE \u2014 The Code, Secs. 1101-5 \u2014 Acts 1895, Chap. 295.\nIn an indictment under Acts 1895, Chap. 295, for carnally knowing a girl between the ages of 10 and 1^, it is error to charge that the crime would he complete \u201cif the jury should And that the defendant injured and abused her genital organs.\"\nINDICTMENT against- James Monds, heard by Judge George 4. Jones and a jury, at March. Term., 1902, of the Superior Court of GiiowaN County. From a verdict of guilty and judgment thereon, the defendant appealed.\nRobert D. Gilmer, Attorney-General, for the State.\nW. J. Leary, Sr., for the defendant." }, "file_name": "0697-01", "first_page_order": 735, "last_page_order": 738 }