{
  "id": 8617608,
  "name": "STATE v. WILBERT JOHNSON and CHARLES PRIMUS, JR.",
  "name_abbreviation": "State v. Johnson",
  "decision_date": "1946-04-17",
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  "first_page": "266",
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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. WILBERT JOHNSON and CHARLES PRIMUS, JR."
    ],
    "opinions": [
      {
        "text": "\"WiNboeNe, J.\nPending bearing on appeal taken, as above stated, defendants filed originally in tbis Court motion in arrest of judgment upon tbe ground that tbe bill of indictment is insufficient to support a judgment of death in that it fails to charge that tbe offense, alleged to have been committed on tbe female person named, was done \u201cforcibly\u201d and \u201cagainst her will.\u201d\nIn tbe light of tbe language of tbe statute, G. S., 14-21, pertaining to punishment for rape, as construed in several decisions of tbis Court, particularly S. v. Marsh, 132 N. C., 1000, 43 S. E., 828, where tbe authorities are assembled, tbe bill of indictment here is insufficient and fatally defective. Hence, tbe motion in arrest of judgment is well taken.\nThe statute, G. S., 14-21, provides that: \u201cEvery person who is convicted of ravishing and carnally knowing any female of tbe age of twelve years or more by force and against her will, or who is convicted of unlawfully and carnally knowing and abusing any female child under tbe age of twelve years, shall suffer death.\u201d\nUnder tbe first clause of tbis statute, relating to tbe ravishing and carnally knowing of a female person who is of tbe age of twelve years or more, tbe elements of force and lack of consent must be alleged and proven before a conviction may be bad on which death sentence may be imposed. Allegation is as necessary as proof. In tbe absence of either, death sentence may not be imposed.\nOn tbe.other band, under tbe second clause of tbe statute relating to unlawfully and carnally knowing and abusing any female child under tbe age of twelve years, neither force nor lack of consent need be alleged or proven, and such child is by virtue of tbe statute presumed incapable of consenting.\nMoreover, in S. v. Marsh, supra, a bill of indictment, in material aspects tbe same as that now under consideration for insufficiency, was tbe subject of attack for tbe absence of tbe words \u201cby force\u201d and \u201cagainst her will.\u201d In that connection, Clark, C. J., reviewing and considering tbe holdings of former decisions, wrote for tbe Court as follows:\n\u201cTbe defect alleged is tbe absence of tbe words \u2018forcibly\u2019 and \u2018against her will.\u2019 As to the word \u2018forcibly\u2019 in S. v. Jim, 12 N. C., 142, it was held that an indictment omitting both terms \u2018forcibly\u2019 and \u2018against her will\u2019 was defective. In S. v. Johnson, 67 N. C., 55, it was held that tbe omission of tbe word \u2018forcibly\u2019 was not fatal when tbe charge was \u2018against her will did feloniously ravish,\u2019 tbe Court saying through Reade, J., that any equivalent word would answer in lieu of \u2018forcibly\u2019; that though the word \u2018ravish\u2019 would seem to imply force, yet that word is not an express charge of force, standing alone, but that the addition thereto of the words \u2018feloniously\u2019 and \u2018against her will\u2019 was sufficient under our statute as an express charge of force. In S. v. Powell, 106 N. C., 635, where both the words \u2018forcibly\u2019 and \u2018against her will\u2019 were omitted, it was held, following S. v. Jim, supra, that the bill was defective. . . . Thus, on a review of our authorities, it will be seen that it has been held that the absence of both \u2018forcibly\u2019 and \u2018against her will\u2019 is fatal, but that forcibly can be supplied by any equivalent word; that it is not supplied by the use of the word \u2018ravish,\u2019 but it is sufficiently charged by the words \u2018feloniously and against her will.\u2019 In all the cases above reviewed where the words \u2018against her will\u2019 are omitted, the bill was held defective. No doubt, the words \u2018against her will\u2019 can be supplied by an equivalent as well as the word \u2018forcibly,\u2019 but we do not find such equivalent in this bill. The words \u2018unlawfully, wilfully, and feloniously\u2019 did \u2018ravish and carnally know,\u2019 do not charge it was \u2018against her will,\u2019 except by implication, and it is held in S. v. Johnson, supra, that they do not even sufficiently charge that the act was \u2018forcibly\u2019 perpetrated in the absence of the words \u2018against her will.\u2019 \u201d\nThen, continuing, the then Chief Justice said: \u201cIt is a subject of regret that a trial of so serious a nature, occupying so much of the public time, should go for naught, but we do not feel at liberty to overrule the above repeated decisions of this Court,\u201d and motion in arrest of judgment was allowed.\nWhat was said in the Marsh case, supra, is appropriate here. We may add that we are not at liberty to disregard the express provisions of the statute. Hence, the motion in arrest of judgment is allowed. But in keeping with the decision in S. v. Marsh, supra, we say h.ere that as the prisoners have not been in jeopardy, they may still be put on trial upon proper bills.\nJudgment arrested.",
        "type": "majority",
        "author": "\"WiNboeNe, J."
      }
    ],
    "attorneys": [
      "Attorney-General McMullan and Assistant Attorneys-General Rhodes, Moody, and Tucher for the State.",
      "A. B. Breece for defendants, appellants."
    ],
    "corrections": "",
    "head_matter": "STATE v. WILBERT JOHNSON and CHARLES PRIMUS, JR.\n(Filed 17 April, 1946.)\n1. Rape \u00a7 3\u2014\nAn indictment for rape of a female twelve years of age or more under G-. S., 14-21, which fails to cliarge that the offense was committed forcibly and against her will is fatally defective, it being necessary in order to support the death penalty that both these elements be alleged and proven.\n3. Rape \u00a7 8\u2014\nIn a prosecution for ravishing and carnally knowing or abusing a female person under the age of twelve years, neither force nor lack of consent need be alleged or proven, since by virtue of the statute such child is presumed incapable of consenting. G. S., 14-21.\n3. Criminal Law \u00a7 56\u2014\nWhere an indictment is fatally defective, defendants\u2019 motion in arrest of judgment, even when filed originally in the Supreme Court, must be allowed.\n4. Criminal Law \u00a7 34\u2014\nProceedings had upon an indictment which is fatally defective do not constitute jeopardy and do not preclude subsequent trial of defendants upon proper bills.\nAppeal by defendants from Parher, J., at September Term, 1945, of Wake, beard in Supreme Court upon motion in arrest of judgment.\nCriminal prosecution upon tbe following bill of indictment:\n\u201cTbe jurors for tbe State upon their oath present, that Charles Primus, Jr., and Wilbert Johnson, male persons over 18 years of age, late of tbe County of Wake, on tbe 19th day of July in tbe year of our Lord one thousand nine hundred and forty five, with force and arms, at and in tbe county aforesaid, not having tbe fear of God before their eyes, but being moved and seduced by the instigation of tbe devil, in and upon one Virginia Lipscomb, a female, in tbe peace of God and tbe State then and there being, unlawfully, wilfully, violently and feloniously did make an assault and her the said Virginia Lipscomb then and there violently did ravish and carnally know against tbe form of tbe statute in such case made and provided and against the peace and dignity of the State.\u201d\nVerdict, as to each defendant: \u201cGuilty of rape as in tbe bill of indictment charged.\u201d\nJudgment, as to each defendant: Death by inhalation of lethal gas administered in the manner provided by law.\nDefendants appeal therefrom to Supreme Court and assign error.\nAttorney-General McMullan and Assistant Attorneys-General Rhodes, Moody, and Tucher for the State.\nA. B. Breece for defendants, appellants."
  },
  "file_name": "0266-01",
  "first_page_order": 314,
  "last_page_order": 316
}