{ "id": 8625316, "name": "STATE v. MAJOR BENTON", "name_abbreviation": "State v. Benton", "decision_date": "1946-11-27", "docket_number": "", "first_page": "745", "last_page": "749", "citations": [ { "type": "official", "cite": "226 N.C. 745" } ], "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": "9 N. C., 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275762 ], "opinion_index": 0, "case_paths": [ "/nc/9/0063-01" ] }, { "cite": "84 S. E., 39", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "168 N. C., 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656925 ], "opinion_index": 0, "case_paths": [ "/nc/168/0048-01" ] }, { "cite": "220 N. C., 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11303501 ], "opinion_index": 0, "case_paths": [ "/nc/220/0402-01" ] }, { "cite": "75 N. C., 289", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8693715 ], "opinion_index": 0, "case_paths": [ "/nc/75/0289-01" ] }, { "cite": "67 N. C., 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2092681 ], "opinion_index": 0, "case_paths": [ "/nc/67/0285-01" ] }, { "cite": "78 N. C., 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8695420 ], "opinion_index": 0, "case_paths": [ "/nc/78/0437-01" ] }, { "cite": "33 S. E., 176", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "167 N. C., 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271744 ], "opinion_index": 0, "case_paths": [ "/nc/167/0122-01" ] }, { "cite": "61 S. E., 630", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "146 N. C., 677", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272360 ], "opinion_index": 0, "case_paths": [ "/nc/146/0677-01" ] }, { "cite": "56 S. E., 855", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "144 N. C., 183", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "106 S. E., 817", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "181 N. C., 546", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657517 ], "opinion_index": 0, "case_paths": [ "/nc/181/0546-01" ] }, { "cite": "15 S. E., 881", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "111 N. C., 66", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650548 ], "opinion_index": 0, "case_paths": [ "/nc/111/0066-01" ] }, { "cite": "154 S. E., 604", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "199 N. C., 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599333 ], "opinion_index": 0, "case_paths": [ "/nc/199/0278-01" ] }, { "cite": "49 S. E., 49", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "137 N. C., 91", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655809 ], "opinion_index": 0, "case_paths": [ "/nc/137/0091-01" ] }, { "cite": "78 N. C., 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8697890 ], "opinion_index": 0, "case_paths": [ "/nc/78/0555-01" ] }, { "cite": "88 S. E., 433", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "171 N. C., 787", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272407 ], "opinion_index": 0, "case_paths": [ "/nc/171/0787-01" ] }, { "cite": "120 S. E., 345", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "186 N. C., 582", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654304 ], "opinion_index": 0, "case_paths": [ "/nc/186/0582-01" ] }, { "cite": "183 S. E., 388", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "209 N. C., 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2221554 ], "opinion_index": 0, "case_paths": [ "/nc/209/0150-01" ] }, { "cite": "67 N. C., 55", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2092625 ], "opinion_index": 0, "case_paths": [ "/nc/67/0055-01" ] } ], "analysis": { "cardinality": 670, "char_count": 13614, "ocr_confidence": 0.488, "pagerank": { "raw": 3.255334343791772e-07, "percentile": 0.8691900570264908 }, "sha256": "f2fd2e29eda649fb3fd6baa1d2cc70807565997ade17a9c5b2867722a9db344b", "simhash": "1:053763a8f83ec5b3", "word_count": 2383 }, "last_updated": "2023-07-14T21:52:42.041183+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. MAJOR BENTON." ], "opinions": [ { "text": "Stacy, C. J.\nThe sufficiency of the indictment is challenged by motion in arrest of judgment, because it fails to allege the use of \u201cforce\u201d in the accomplishment of the assault. S. v. Johnson, ante, 266; S. c., ante, 671. It has been decided that the words \u201cby force,\u201d or some equivalent expression, must be used in an indictment for rape. G. S., 14-21; S. v. Johnson, 67 N. C., 55. Whether the instant bill is sufficient need not now be determined, since a new trial must be ordered on other grounds, and the solicitor can easily eliminate any objection by sending a new bill to the grand jury. It is desirable in criminal matters to adhere to the established practice. Innovations usually result in prolonged litigation. S. v. Owenby, ante, 521.\nA careful perusal of the charge invites the thought that it must have impressed the jury with the strength of the State\u2019s case and the weakness of the defendant\u2019s, especially in view of the closing admonition, \u201cthe evidence as testified to by the witnesses has been rather clear,\u201d and the result which followed immediately thereafter. S. v. Rhinehart, 209 N. C., 150, 183 S. E., 388; S. v. Hart, 186 N. C., 582, 120 S. E., 345; S. v. Horne, 171 N. C., 787, 88 S. E., 433. The jury could hardly have understood the court to mean that the testimony of the defendant\u2019s witnesses was \u201crather clear,\u201d for dual, if not discordant, pleas \u2014 insanity and alibi \u2014 were being interposed by him, and Dr. Owens, who testified in his behalf, had said on cross-examination: \u201cI wouldn\u2019t go so far as to say he doesn\u2019t know right from wrong.\u201d The defendant did not testify before the jury. This pronouncement of the court that the evidence was \u201crather clear,\u201d would appear to be an invasion of the province of the twelve. S. v. Browning, 78 N. C., 555; Earnhardt v. Clement, 137 N. C., 91, 49 S. E., 49. \"Whether the evidence was acceptable or worthy of belief belonged to them. S. v. Beal, 199 N. C., 278, 154 S. E., 604. \u201cIt is only where the law gives to testimony an artificial weight that the judge is at liberty to express an opinion upon its weight.\u201d Bonner v. Hodges (1st syllabus), 111 N. C., 66, 15 S. E., 881.\nIt is the intent of the statute that the judge shall give no intimation to the jury whether a material fact has been fully or sufficiently established, it being the true office and province of the latter to weigh the testimony and to decide upon its adequacy to prove any issuable fact. S. v. Jones, 181 N. C., 546, 106 S. E., 817. It is the duty of the judge, under the provisions of the statute, to state in a plain and correct manner the evidence given in the case and to declare and explain the law arising thereon, without expressing any opinion upon the facts. G. S., 1-180. It can make no difference in what way or when the opinion of the judge is conveyed to the jury, whether directly or indirectly, or by the general tone and tenor of the trial. The statute forbids any intimation of his opinion in any form whatever, it being the intent of the law to insure to each and every litigant a fair and impartial trial before the jury. Withers v. Lane, 144 N. C., 183, 56 S. E., 855. \u201cThe slightest intimation from a judge as to the strength of the evidence or as to the credibility of a witness will always have great weight with the jury, and, therefore, we must be careful to see that neither party is unduly prejudiced by an expression from the bench which is likely to prevent a fair and impartial trial\u201d \u2014 Walker, J., in S. v. Ownby, 146 N. C., 677, 61 S. E., 630.\nThe judge may indicate to the jury what impression the evidence has made on his mind, or what deductions he thinks should be drawn therefrom, without expressly stating his opinion in so many words. This may be done by his manner or peculiar emphasis or by his so arraying and presenting the evidence as to give one of the parties an undue advantage over the other; or, again, the same result may follow the use of language or form of expression calculated to impair the credit which might otherwise and under normal conditions be given by the jury to the testimony of one of the parties. Speed v. Perry, 167 N. C., 122, 33 S. E., 176; S. v. Dancy, 78 N. C., 437; S. v. Jones, 67 N. C., 285.\nThe unusual combination of defendant\u2019s pleas \u2014 insanity and alibi\u2014 no doubt caused the repeated use of the expression \u201cresponsible for his crime.\u201d The jury, of course, was to say whether the alleged rape belonged to the defendant, or was \u201chis crime.\u201d\nWhile the disinterestedness of the officers who testified for the State, their freedom from bias and worthiness of belief were brought to the jury\u2019s attention in the form of contention that could hardly be doubted that the triers of the facts gained the impression from what was said that the judge entertained a high regard for their testimony and thought it \u201cquite clear.\u201d McRae v. Lawrence, 75 N. C., 289. Also, in the same category would seem to fall the testimony of the doctor who attended the prosecutrix, for it was recited by way of contention that \u201che was an expert witness\u201d and what he says \u201ccorroborates her testimony.\u201d\nThe manner of stating the contentions of the parties, if indicative of the court\u2019s opinion, is within the prohibition of the statute. G. S., 1-180; Bailey v. Hayman, 220 N. C., 402, 17 S. E. (2d), 520. \u201cThere must be no indication of the judge\u2019s opinion upon the facts, to the hurt of either party,' either directly or indirectly, by words or conduct.\u201d Bank v. McArthur, 168 N. C., 48, 84 S. E., 39.\nThe lapsus lingua or misstatement to the jury, if such it were, that defendant\u2019s counsel had asked them to return a verdict of \u201cguilty of assault with intent to commit rape,\u201d rather than one of rape, should have been called to the court\u2019s attention at the time. S. v. McNair, ante, 462. Ordinarily, standing alone, this would perhaps amount to no more than a harmless inadvertence. In the instant case, however, it may have given color and tone to the court\u2019s charge, especially in the light of the prior references to the voluntariness of the confession.\nWe are inclined to the view that the defendant is entitled to an other-hearing. Reel v. Reel, 9 N. C., 63. It is so ordered.\nNew trial.", "type": "majority", "author": "Stacy, C. J." } ], "attorneys": [ "Attorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State.", "Jones & Jones and R. O. Everett for defendant." ], "corrections": "", "head_matter": "STATE v. MAJOR BENTON.\n(Filed 27 November, 1946.)\n1. Rape \u00a7 2\u2014\nAn indictment for rape must use the words \u201cby force\u201d or their equivalent in describing the manner in which the assault was accomplished. G. S., 14-21.\n2. Indictment \u00a7 9\u2014\nIn drawing an indictment it is advisable to adhere to the established practice.\n3., Criminal Law \u00a7 53f \u2014 Charge held for error as containing an expression of opinion by the court on the evidence.\nIn this prosecution for rape defendant pleaded insanity and alibi. One of defendant\u2019s witnesses stated he would not go so far as to say defendant did not know right from wrong. The State\u2019s evidence included testimony of prosecutrix, an alleged confession and testimony of officers in respect thereto, and the court stated the State\u2019s contentions at length. The jury having failed to reach a verdict, the court recalled them and instructed them that the evidence was \u201crather clear\u201d and that it should reach a verdict if possible. The jury shortly thereafter returned a verdict of guilty of the capital crime. Held: Under the circumstances the expression that the evidence was \u201crather clear\u201d must have been understood to have referred to the State\u2019s witnesses and not to defendant\u2019s, and must be held for error as an expression of opinion by the court upon the weight of the evidence.\n4. Same\u2014\nThe court is precluded from expressing an opinion upon the weight or credibility of the evidence either directly or indirectly by manner, form of expression, or method of arraying and presenting the evidence which is calculated to influence the jury, or by the general tone and tenor of the trial.\n5. Same\u2014\nWhere defendant pleads insanity and alibi, the repeated use of the phrase in the charge \u201cresponsible for his crime\u201d invades the province of the jury, since under the plea of alibi it is for the jury to determine whether the crime was committed by defendant.\n6. Same\u2014\nThe manner of stating the contentions of the parties, if indicative of the court\u2019s opinion, is within the prohibition of G. S., 1-180, and in the instant case the statement of the State\u2019s contentions in regard to the disinterestedness of officers who testified for the State and the weight to be given the testimony of a doctor as an expert witness, together with a later statement that the evidence was \u201crather clear\u201d is held to disclose that the court entertained high regard for such testimony.\n7. Same\u2014\nA misstatement in the charge that defendant\u2019s counsel had asked the jury to return a verdict of guilty of an assault with intent to commit rape instead of one of rape, when not called to the court\u2019s attention at the time, ordinarily is no more than a harmless inadvertence, but in the instant ease it may have been prejudicial when considered in connection with the charge of the court.\nAppeal by defendant from Phillips, J., at April Term, 1946, of RICHMOND.\nCriminal prosecution on indictment charging that the defendant did \u201cwith force and arms\u201d assault, ravish and carnally know a female \u2018wil-fully, unlawfully and feloniously . . . and against her will.\u201d\nThere was evidence by the State, including an alleged confession of the defendant, in support of the indictment. The prosecutrix was assaulted by someone with a \u201ccrippled hand \u2014 his fingers seemed to have been drawn on one hand\u201d \u2014 on the night of 24 December, 1945, as she was walking along a wooded path near her daughter\u2019s home in Hamlet. She made outcry as soon as she was able to free herself and reach her daughter\u2019s house. Officers were called and found evidence of a struggle and the prosecutrix\u2019 pocketbook where the assault took place. A doctor was also called who found the prosecutrix in a highly nervous condition, with signs of having been choked and assaulted.\nSometime thereafter the defendant was questioned by the officers and made a statement in the nature of a confession to the effect that he raped the prosecutrix on the night in question. The defendant has a crippled hand.\nOn trial, the 'defendant interposed a plea of mental irresponsibility induced by drunkenness and low mentality. He also offered evidence tending to show that he was elsewhere at the time of the assault' \u2014 an alibi. The defendant did not offer himself as a witness before the jury.\nThe defendant excepted to the general tone of the court\u2019s charge to the jury \u2014 its strong summation of the State\u2019s case \u2014 the singling out of some of the testimony for special consideration, and particularly to the following expressions:\n1. \u201cSomething has been said in the argument about the competency of the confession. . . . The court has ruled that the confession was made freely and voluntarily . . ., so any argument ... as to the incompetency of the confession . . . will not be considered by you at all. The court has ruled that the confession as made to the officers by the defendant was freely and voluntarily made and admitted in evidence for your consideration in this case. You will take the law from the court and the court alone.\u201d Exception.\n2. \u201cNow the State further insists and contends that the prosecutrix is corroborated in her testimony . . . that she immediately ran to her daughter\u2019s home, . . . and told them immediately what had happened . . . that she didn\u2019t wait five minutes, ten minutes, an hour or two hours, or a week.\u201d Exception.\n3. \u201cThe State further insists and contends that a doctor was called and that you should believe what the doctor says about it, that he was an expert witness . . . which the State insists and contends corroborates her testimony.\u201d\n4. The State further insists and contends that the psychiatrist offered by the defendant substantiates rather than contradicts the State \u201cin its contention of his (defendant\u2019s) mental capacity to be responsible for his crime . . . and if you take what the defendant\u2019s evidence shows you would say that the defendant is responsible under the law for his crime.\u201d\n5. \u201cThe State further insists and contends that you should believe the officers in the ease (naming them) ; that they have no reason to testify falsely against this man; that they are officers of the law . . . worthy of your belief and you should believe them; that if you believe what they say about it and what the defendant told them and the other evidence in the case . . . you should be satisfied . . . beyond a reasonable doubt that the defendant is guilty of the capital crime of rape.\u201d\n6. \u201cNow the defendant\u2019s counsel in their argument . . . have asked you to return a verdict of \u2018guilty of assault with intent to commit rape\u2019 but not to find the defendant guilty of the capital charge of rape.\u201d\nThe jury was given the case about 4 o\u2019clock on Friday afternoon. On the following morning about 11 o\u2019clock they were called in by the court and asked if they were able to agree upon a verdict. The jury answered: \u201cNo, we are pretty well divided; 7 to 5.\u201d The court then instructed the jury that it was their duty to agree if possible, saying r \u201cThe evidence as testified to by the witnesses has been rather clear and if it is at all possible you gentlemen should try to reach a verdict.\u201d Exception.\nIn about 30 minutes, the jury returned the verdict, \u201cGruilty of rape as charged in the bill of indictment.\u201d\nJudgment: Death by asphyxiation.\nThe defendant appeals, assigning errors.\nAttorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State.\nJones & Jones and R. O. Everett for defendant." }, "file_name": "0745-01", "first_page_order": 793, "last_page_order": 797 }