{
  "id": 8616380,
  "name": "STATE v. GURNEY HERRING",
  "name_abbreviation": "State v. Herring",
  "decision_date": "1946-03-20",
  "docket_number": "",
  "first_page": "213",
  "last_page": "216",
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    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name": "N.C."
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    {
      "cite": "221 N. C., 558",
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  "last_updated": "2023-07-14T21:52:42.041183+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. GURNEY HERRING."
    ],
    "opinions": [
      {
        "text": "ScheNCK, J.\nThe assignments of error set out in the appellant\u2019s brief are not based upon exceptions briefly and clearly stated and numbered in the record, therefore they would seem not to be in compliance with Rule 21, Rules of Practice in the Supreme Court, 221 N. C., 558, yet this being a capital case wherein the life of the defendant is at stake, these assignments of error will, nevertheless, be considered.\nUnder the first assignment of error set out in the appellant\u2019s brief he contends he is entitled to a discharge because the bill of indictment does not properly charge the offense of rape. The bill of indictment, in part, reads: \u201c. . . that Gurney Herring, in Wayne County, on or before the 15th day of June, 1945, with force and arms, at and in the county aforesaid, did unlawfully, willfully and feloniously ravish and carnally know one Clarinette Brock, a female, by force and against ber will.\u201d Tbe indictment is sufficient to support tbe verdict of guilty of tbe capital offense and judgment of death pronounced thereon. S. v. Farmer, 26 N. C., 224; S. v. Storkey, 63 N. C., 7; S. v. Johnson, 67 N. C., 55; S. v. Jackson, 199 N. C., 321, 154 S. E., 402. Tbis assignment of error is not sustained.\nIn tbe second assignment of error set out in appellant\u2019s brief tbe defendant contends that tbe court erred in its charge in that in defining tbe offense of \u201cAssault on female\u201d tbe crime was not limited to males over tbe age of 18 years, and defendant argues that there is no evidence in tbe record tending to show tbe age of tbe defendant. Tbis exception is without merit for tbe reason that if there was error committed tbe error was in defendant\u2019s favor as there is a presumption that tbe defendant was 18 years of age, and tbe burden rests upon him to show tbe contrary. S. v. Lewis, 224 N. C., 774, 32 S. E. (2d), 334, and cases there cited.\nTbe third assignment of error set out in tbe appellant\u2019s brief is directed to tbe sustaining of tbe objection by tbe State to an interrogatory propounded to tbe prosecuting witness on cross-examination. Tbe interrogatory was: \u201cPeople said they have seen him (defendant) frequently going to your bouse, going in and out day and night. They are just mistaken?\u201d Tbe assignment of error is untenable for tbe reason that tbe question assumes facts which have not been established or admitted. 70 Corpus Juris, Witnesses, sec. 704, p. 545; Carson v. Insurance Co., 171 N. C., 135 (137-8), 88 S. E., 145. And, too, it would seem that tbe interrogatory calls for hearsay evidence in reply.\nIn tbe fourth assignment of error set out in tbe defendant\u2019s brief tbe defendant contends that bis motion for a directed verdict of not guilty should have been allowed. Tbis contention is untenable in tbe face of tbe evidence introduced by tbe State; tbe prosecutrix testified, inter alia, that tbe defendant choked and beat ber, and that by tbe use of force bad sexual intercourse with ber five or six times; tbe doctor, who examined tbe prosecutrix after tbe alleged assault, testified that there were marks on ber throat and that ber arms and legs were bruised; and, in addition, tbe record tends to show that tbe defendant admitted to tbe chief of police a felonious assault by him upon tbe prosecutrix.\nTbe fifth assignment of error set out in tbe appellant\u2019s brief is directed to tbe judgment pronounced by tbe court. There can be but little, if any, discussion of tbis assignment. Tbe verdict sustained tbe judgment, and tbe verdict was duly reached at tbe trial.\nWe have attentively examined and considered tbe exceptions as grouped, although not noted in tbe record, as well as tbe exceptions set out in. the appellant\u2019s brief, and with full realization of the result thereof, we have reached the conclusion that there exists no valid reason to disturb the judgment entered below.\nNo error.",
        "type": "majority",
        "author": "ScheNCK, J."
      }
    ],
    "attorneys": [
      "Attorney-General McMullan and Assistant Attorneys-General Rhodes, Moody, and Tucker for the State.",
      "T. T. Thorne and George E. Hood for defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "STATE v. GURNEY HERRING.\n(Filed 20 March, 1946.)\n1. Criminal Law \u00a7 78c\u2014\nAssignments of error should be based upon exceptions briefly and clearly stated and numbered in the record, but in a capital case assignments of error not so based nevertheless may be considered. Rule 21.\n2. Rape \u00a7 lb\u2014\nAn indictment charging that defendant with force and arms did unlawfully, willfully and feloniously ravish and carnally know the prosecuting witness, a female, by forc\u00e9 and against her will, is held sufficient to support a verdict of guilty of the capital offense and judgment of death pronounced thereon.\n8. Rape \u00a7 23~\u2014\nThe failure of the court, in defining assault on a female, to state that the perpetrator must he a male over eighteen years of age will not be held for error on defendant\u2019s appeal, since there is a presumption that defendant is over eighteen years of age and the burden rests upon him to show the contrary.\n4. Criminal Law \u00a7 42c\u2014\nIn cross-examining a witness for the State, defendant is not entitled to ask a question which assumes facts which are not established or admitted.\n5. Rape \u00a7 4\u2014\nIn this prosecution for rape, evidence tending to show that defendant choked and beat the prosecuting witness and by the use of force had sexual intercourse with her against her will, together with testimony of an admission made by defendant to the chief of police that defendant had feloniously assaulted .prosecutrix, is liel\u00fc, sufficient to be submitted to the jury, and defendant\u2019s motion for a directed verdict of not guilty was properly refused.\nAppeal by defendant from Garr, J., at November-December Term, 1945, of WayNE.\nThe record was made complete by being made to show tbe arraignment of the defendant as shown by the affidavit of the Clerk of the Superior Court of Wayne County filed in this Court in response to motion of the State suggesting the diminution of the record.\nThe defendant was tried, convicted and sentenced to death upon a bill of indictment which charged that he, the defendant \u201cdid unlawfully, willfully and feloniously ravish and carnally know one Olarinette Brock, a female, by force and against her will, against the form of the statute in such case made and provided, and against the peace and dignity of the State.\u201d\nFrom judgment of death by asphyxiation, the defendant appealed, assigning errors.\nAttorney-General McMullan and Assistant Attorneys-General Rhodes, Moody, and Tucker for the State.\nT. T. Thorne and George E. Hood for defendant, appellant."
  },
  "file_name": "0213-01",
  "first_page_order": 261,
  "last_page_order": 264
}