{ "id": 8575701, "name": "STATE v. BOBBY LEE GOINES", "name_abbreviation": "State v. Goines", "decision_date": "1968-04-17", "docket_number": "", "first_page": "509", "last_page": "514", "citations": [ { "type": "official", "cite": "273 N.C. 509" } ], "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": "95 S.E. 2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "245 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610972 ], "opinion_index": 0, "case_paths": [ "/nc/245/0344-01" ] }, { "cite": "113 S.E. 2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "252 N.C. 121", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619196 ], "opinion_index": 0, "case_paths": [ "/nc/252/0121-01" ] }, { "cite": "116 S.E. 2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622810 ], "opinion_index": 0, "case_paths": [ "/nc/253/0130-01" ] }, { "cite": "144 S.E. 2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "265 N.C. 452", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575677 ], "opinion_index": 0, "case_paths": [ "/nc/265/0452-01" ] }, { "cite": "156 S.E. 2d 733", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "271 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563957 ], "opinion_index": 0, "case_paths": [ "/nc/271/0364-01" ] }, { "cite": "1 S.E. 2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "215 N.C. 220", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628943 ], "opinion_index": 0, "case_paths": [ "/nc/215/0220-01" ] }, { "cite": "153 S.E. 2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "269 N.C. 453", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564264 ], "opinion_index": 0, "case_paths": [ "/nc/269/0453-01" ] }, { "cite": "156 S.E. 2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "271 N.C. 379", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564082 ], "opinion_index": 0, "case_paths": [ "/nc/271/0379-01" ] }, { "cite": "160 S.E. 2d 49", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "273 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575372 ], "opinion_index": 0, "case_paths": [ "/nc/273/0377-01" ] }, { "cite": "39 S.E. 2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "226 N.C. 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623394 ], "opinion_index": 0, "case_paths": [ "/nc/226/0620-01" ] }, { "cite": "72 S.E. 2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622603 ], "opinion_index": 0, "case_paths": [ "/nc/236/0109-01" ] }, { "cite": "127 S.E. 2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "257 N.C. 765", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571144 ], "opinion_index": 0, "case_paths": [ "/nc/257/0765-01" ] }, { "cite": "178 S.E. 218", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "207 N.C. 624", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627687 ], "opinion_index": 0, "case_paths": [ "/nc/207/0624-01" ] }, { "cite": "44 S.E. 107", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "132 N.C. 1062", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662854 ], "opinion_index": 0, "case_paths": [ "/nc/132/1062-01" ] }, { "cite": "28 S.E. 405", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "121 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653755 ], "opinion_index": 0, "case_paths": [ "/nc/121/0628-01" ] }, { "cite": "36 S.E. 2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "226 N.C. 78", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612948 ], "opinion_index": 0, "case_paths": [ "/nc/226/0078-01" ] } ], "analysis": { "cardinality": 749, "char_count": 14303, "ocr_confidence": 0.568, "pagerank": { "raw": 2.1892633846642505e-06, "percentile": 0.9957032243964803 }, "sha256": "5648d1729f62efcf121cfa7514c36ad897668f37faff772d11eccfa9168a5873", "simhash": "1:0362744c95357e36", "word_count": 2599 }, "last_updated": "2023-07-14T20:52:42.272754+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Shabp, J., took no part in the consideration or decision of this case." ], "parties": [ "STATE v. BOBBY LEE GOINES." ], "opinions": [ { "text": "HusiciNS, J.\nTo constitute an assault with intent to commit rape, it is not necessary that the assailant retain such intent throughout the assault. It is sufficient if he at any time during the assault has an intent to gratify his passion upon the prosecutrix at all events, notwithstanding any resistance on her part. State v. Petry, 226 N.C. 78, 36 S.E. 2d 653; State v. Williams, 121 N.C. 628, 28 S.E. 405. \u201cThe intent is necessarily an inference to be drawn from the defendant\u2019s acts, and it must be drawn by the jury and not by the judge, when there is any evidence.\u201d State v. Mehaffey, 132 N.C. 1062, 44 S.E. 107.\nDefendant\u2019s first assignment of error is addressed to the statement of the prosecuting witness, admitted over his objection, that defendant put his face down close to hers, \u201ctrying to kiss me.\u201d The statement is admissible as a shorthand statement of fact. It is not error to permit a witness to testify that a hammer was in \u201cgood condition,\u201d Watson v. Durham, 207 N.C. 624, 178 S.E. 218; that a car was moving \u201creal fast,\u201d Benson v. Sawyer, 257 N.C. 765, 127 S.E. 2d 549; that a stairway went up \u201cas a corkscrew would,\u201d Mintz v. Railway, 236 N.C. 109, 72 S.E. 2d 38. An observer may testify to common appearances, facts and conditions in language which is descriptive of facts observed so as to enable one not an eyewitness to form an accurate judgment in regard thereto. Tyndall v. Hines Co., 226 N.C. 620, 39 S.E. 2d 828.\nThe prosecuting witness testified over defendant\u2019s objection that the occupants of the Yance Apartments on the front entrance of the building \u201cup to the third floor had raised their window and was yelling for him to . . . turn that woman aloose.\u201d This testimony is obviously competent as part of the res gestee. \u201cExclamations or declarations spontaneously evolved by the event and relevant to the inquiry are a part of the res gestes, and testimony thereof is competent as an exception to the hearsay rule.\u201d 3 Strong, N. C. Index 2d, Evidence \u00a7 35, and cases cited.\nFailure of the court to nonsuit is defendant\u2019s third assignment of error. Motion to nonsuit requires the trial court to consider the evidence in its light most favorable to the State, take it as true, and give the State the benefit of every reasonable inference to be drawn therefrom. State v. Cook, 273 N.C. 377, 160 S.E. 2d 49; State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679; State v. Overman, 269 N.C. 453, 153 S.E. 2d 44. Regardless of whether the evidence is direct, circumstantial, or both, if there is evidence from which a jury could find that the offense charged has been committed and that defendant committed it, the motion to nonsuit should be overruled. State v. Norggins, 215 N.C. 220, 1 S.E. 2d 533. The evidence in this case, when so considered, depicts a vicious assault on a prosecuting witness who positively identifies defendant as her assailant. There is substantial evidence of every material element of the offense, including intent. It was therefore a question for the jury.\nDefendant assigns as error the following excerpt from the charge in parentheses: \u201cUpon the defendant\u2019s arraignment under this bill of indictment, the defendant entered a. plea of not guilty. (By his plea of not guilty he not only denies that he is not guilty) \u2014he denies that he is guilty of any crime with which he is charged, but he challenges and denies the credibility of the witnesses and the evidence upon which the State relies for conviction.\u201d This was a lapsus Ungues immediately corrected by the court so that the jury could not possibly have been misled. State v. Withers, 271 N.C. 364, 156 S.E. 2d 733. It was therefore harmless.\nThe prosecuting witness testified that during the assault and while defendant was on top of her, he started \u201cpulling at my clothes.\u201d In reciting the evidence during the charge, the court used the words \u201cpulling up her clothes\u201d and \u201cpulling up her dress\u201d in lieu of the words actually used by the witness. Defendant assigns this as error.\nSlight inadvertencies in recapitulating the evidence or stating contentions must be called to the attention of the court in time for correction. Objection after verdict comes too late. State v. Cornelius, 265 N.C. 452, 144 S.E. 2d 203; State v. Case, 253 N.C. 130, 116 S.E. 2d 429; State v. Holder, 252 N.C. 121, 113 S.E. 2d 15; State v. Adams, 245 N.C. 344, 95 S.E. 2d 902. Even so, the evidence indicates defendant was trying to remove the clothing or get it in such position as not to interfere with his purpose. It seems immaterial whether he was \u201cpulling up\u201d or \u201cpulling down\u201d or \u201cpulling at.\u201d\nDefendant has had a fair trial, free from prejudicial error, and the verdict and judgment entered below will be upheld.\nNo error.\nShabp, J., took no part in the consideration or decision of this case.", "type": "majority", "author": "HusiciNS, J." } ], "attorneys": [ "Boyce, Lake & Burns by F. Kent Burns, Attorneys for defendant appellant.", "T. W. Bruton, Attorney General, and James F. Bullock, Deputy Attorney General, for the State." ], "corrections": "", "head_matter": "STATE v. BOBBY LEE GOINES.\n(Filed 17 April 1968.)\n1. Rape \u00a7 17\u2014\nIn order to constitute an assault with intent to commit rape, it is not necessary that the intent continue throughout, the assault, hut it is sufficient if at any time during the assault the defendant intended to accomplish his purpose notwithstanding any resistance on the part of the prose-cutrix.\n3.Criminal Law \u00a7 71\u2014\nTestimony of the prosecutrix that the defendant put his face close to hers, \u201ctrying to kiss me,\u201d is held competent as a shorthand statement of fact.\n3. Evidence \u00a7 35; Criminal Law \u00a7 33\u2014\nTestimony by the prosecutrix that during an assault upon her the occupants of a nearby apartment building were yelling for her assailant to free her is held competent as part of the res gestas. \u25a0 \u25a0\n4. Criminal Law \u00a7\u00a7 104, 106\u2014\nUpon motion to nonsuit, the evidence must be considered in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom, and\u2019nonsuit should be denied where there is sufficient evidence, direct, circumstantial, or both, from which the jury could find that the offense charged has been committed and that defendant committed it.\n5. Rape \u00a7 18\u2014\nEvidence in this case is held sufficient to be submitted to the jury on the issue of defendant\u2019s guilt of assault with intent to commit rape.\n6. Criminal Law \u00a7 168\u2014\nA lapsus Ungues in the charge which is immediately corrected by the court so that the jury could not have been misled will not be held for prejudicial error.\n7. Criminal Law \u00a7\u00a7 113, 163\u2014\nA slight inadvertence in stating the contentions of the parties or in recapitulating the evidence must be called to the court\u2019s attention in time for correction.\nSHARP, X, took no part in the consideration or decision of this case.\nAppeal by defendant from Bowman, S.J., 28 August 1967 Special Criminal Session, Ware Superior Court.\nCriminal prosecution upon a bill of indictment charging defendant with assault with intent to commit rape upon one Mable Minnie Allen. The jury returned a verdict of guilty as charged. From a judgment of imprisonment in the State\u2019s prison for a term of not less than twelve nor more than fifteen years, defendant appeals.\nThe State\u2019s evidence tends to show that Mrs. Mable Allen, a widow, lived in the Vance Apartments at the corner of Edenton and Wilmington Streets in Raleigh. Christ Episcopal Church is located across Edenton Street from said apartments. Mrs. Allen is a clerk at the Sir Walter Hotel where she has worked for twenty years. She arrived home from work on July 18, 1967 at about 11:20 p.m. and took her little blind dog for a walk as was her custom each night. While standing in front of the apartment building about twelve feet from the steps where two large lights are located, one on each side of the steps, she saw a colored boy walking toward her. She was facing him, and when he reached a point beside her he pivoted and grabbed her around her arms and shoulders, pinning her arms down by her side. \u201cI screamed as soon as he grabbed me. I was still on the sidewalk outside the Vance Apartments. . . . When he grabbed me and pinned my arms to my side, he turned towards the street from the sidewalk and I was screaming and he couldn\u2019t get through the cars . . . parked by the curb ... on the side of the street that the Vance Apartments are on. So he lifted me up clear of the sidewalk, my feet, and walked down about two cars where, there was an opening and he went through that opening and I was begging him to let me get my dog because he was blind. He never spoke, and somehow or other I got aloose from his clutches and fell down on the street. This was in Edenton Street, after I had gone between the cars. He got hold of me and started dragging me across the street. . . . He pulled me over the curb by Christ Church, which is directly in front of the Vance Apartments. . . . He pulled me across the curb and across the sidewalk, and into the church yard. I felt something hit me in the face, and I realized it was bushes. I was on my back and still screaming; I never stopped. When I was on the bush, I was on my back on the ground. He was dragging me on my side, which skinned my ankle and knee and elbow, hip, but when he got me to the bush, he turned me over on my back and held both of my arms down on the ground. I was flat on my back on the ground then. He was on top of me. My arms were like this and he was holding both arms down. I was begging him not to kill me. He never said a word, never opened his mouth. And during this time the people in the apartments were screaming out the windows. There\u2019s nothing but young girls live over there, work around the . . . Capitol buildings, State buildings . . . they were screaming that they had called the police, to turn me aloose. He turned my left hand aloose and started \u2014 he dropped it down on my leg. It was . . . my left hand that he released. He was on top of me. He was kind of on his knees until he turned my hand aloose. He had both my legs together and he was across my body, and when he turned my hand aloose, he kind of fell down flat on my stomach. He put his face down close to mine, trying to kiss me, and with my left hand I turned my head away from him and I got my left hand under his chin and was pushing his face away. He drew his fist back and I was afraid he had a knife or something and I was pleading with him not to kill me. The people were still yelling in the building; all this time no car passed, which was a matter of minutes. He hit me with his fist. He hit my head on the left side. This was while his body was on my body. He put his right hand down on my left leg and started pulling at my clothes. I had on a shirt-waist dress. ... He just started pulling and I heard my dress rip, and about this time is when the cars stopped and that is when he hit me. I blacked out for a second or two, and when I realized what was going on, he was gone. I don\u2019t really know when he left, but he left, and I crawled to the sidewalk . , . and this car had parked there and a young man was in it and I asked him to please help me. I stood up and he ran into the church yard. I told him a man had attacked me. . . . [B]y that time the people were there . . . and the police car came, several of them.\u201d\nThe prosecuting witness found her little dog and returned to her apartment. Two police officers came and asked her if she was able to go a short distance to identify a man they had found. A cab had been called to take her to the hospital, and she rode in the cab with two of the ladies who lived in the building. They followed a police car to a filling station at the corner of New Bern Avenue and Person Street, about three blocks from the Vance Apartments. Defendant Bobby Lee Goines was leaning over into the trunk section of a car parked there as if looking for something. When he straightened up and Mrs. Allen saw his face, she started screaming and identified him as the man who had attacked her. \u201cWhen I saw the defendant on the sidewalk in front of the Vance Apartments and in the church yard, he had on shorts, kind of dark grey shorts, - solid color, and a sport shirt that was checked, had small checks in it. He had on those same clothes when I saw him at the service station.\u201d\nMrs. Allen further stated: \u201cI can absolutely identify State\u2019s Exhibit 3. It is a plaid sport shirt. It is the shirt the defendant had on when he attacked me. He had on this shirt when I saw him at the service station.\u201d\nSergeant Ralph Johnson of the Raleigh Police Department received a call on the police radio at 11:26 p.m. to go to the Vance Apartments. He had received a description over the police radio of a colored male, including a description of the clothing he was wearing. After arriving at the church yard of Christ Church, he received additional description of Mrs. Allen\u2019s assailant. He went to the service station at the intersection of New Bern Avenue and Person Street and found seven or eight police officers already there along with six or seven white males, a service station attendant, the defendant and another colored male with a Mustang. Defendant was sitting about thirty feet off the street inside the service station lot with the trunk of his car, which is the hood really, open. He was bending over with his hands down in the motor doing something. He was wearing a shirt and a pair of shorts, State\u2019s Exhibits 2 and 3. From his knees down, he had several scratches on his legs and ankles, light scratches which appeared fresh. Officer Johnson spoke to defendant and asked him to straighten up. He did and at that time Mrs. Allen said \u201cthat\u2019s him\u201d and started screaming. Defendant was thereupon placed under arrest.\nAt the close of the State\u2019s evidence, defendant moved for nonsuit which was denied. Defendant rested his case and renewed his motion for nonsuit which was again denied.\nDefendant assigns as error (1) the admission of Mrs. Allen\u2019s statement that defendant was \u201ctrying to kiss her\u201d during the assault; (2) permitting Mrs. Allen to testify that persons in the Vance Apartment building were yelling for defendant to turn her loose; (3) denial of defendant\u2019s motion for judgment of nonsuit; (4) the charge regarding the effect of defendant\u2019s plea of not guilty; and (5) inaccurate recapitulation of the evidence during the charge.\nBoyce, Lake & Burns by F. Kent Burns, Attorneys for defendant appellant.\nT. W. Bruton, Attorney General, and James F. Bullock, Deputy Attorney General, for the State." }, "file_name": "0509-01", "first_page_order": 545, "last_page_order": 550 }