{ "id": 8565771, "name": "STATE OF NORTH CAROLINA v. GEORGE HARRIS", "name_abbreviation": "State v. Harris", "decision_date": "1970-12-16", "docket_number": "No. 87", "first_page": "435", "last_page": "439", "citations": [ { "type": "official", "cite": "277 N.C. 435" } ], "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": "281 P. 2d 233", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2431355 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/or/203/0629-01" ] }, { "cite": "148 S.E. 2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "17" } ], "opinion_index": 0 }, { "cite": "267 N.C. 212", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558861 ], "pin_cites": [ { "page": "214-215" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0212-01" ] }, { "cite": "144 S.E. 2d 659", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "265 N.C. 587", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576411 ], "opinion_index": 0, "case_paths": [ "/nc/265/0587-01" ] }, { "cite": "132 S.E. 2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "260 N.C. 352", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574772 ], "opinion_index": 0, "case_paths": [ "/nc/260/0352-01" ] } ], "analysis": { "cardinality": 576, "char_count": 9653, "ocr_confidence": 0.535, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20635681848632875 }, "sha256": "4d65751fa57d9ee0ac6a61c0b09dc2b897839f0ef17a9825d79f01c66c3cb60b", "simhash": "1:45fcd4ff1321ba22", "word_count": 1647 }, "last_updated": "2023-07-14T17:02:40.568981+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. GEORGE HARRIS" ], "opinions": [ { "text": "BOBBITT, Chief Justice.\nDefendant\u2019s appellate counsel concedes, and rightly so, that defendant\u2019s motion for judgment as in case of nonsuit was properly overruled. The State\u2019s unequivocal and uncontradicted evidence was amply sufficient to support the verdict of guilty as charged.\nIn pronouncing judgment Judge McKinnon publicly commended Mr. Collins for his responsible action as a citizen in affording protection to Annie Lee Harvey from defendant and defendant\u2019s companion in crime, thereby saving her from being the victim of actual rape and possibly saving defendant from a sentence of death or life imprisonment. We endorse Judge McKinnon\u2019s appropriate and timely remarks. The chase, overtaking and seizure of defendant by Collins at or near the scene of the crime eliminated all uncertainty as to the identity of defendant as one of the assailants.\nAs noted the State\u2019s evidence includes testimony that defendant, after Collins\u2019 intervention, picked up and ran away with Annie Lee Harvey\u2019s pocketbook. Although no exception was taken to the charge, it seems appropriate to mention that Judge McKinnon instructed the jury they could return (1) a verdict of guilty of assault with intent to commit rape as charged, or (2) guilty of an assault on a female, he being a male person over the age of eighteen years, or (3) a verdict of not guilty. Careful to afford defendant every possible right, Judge McKin-non instructed the jury as follows: \u201cIf you find that he (defendant) made an assault on her (Annie Lee Harvey) but you find that his intent was to steal her pocketbook and not to rape her, then Ee would not be guilty of the felony charge, although he would be guilty of an assault on a female.\u201d Understandably, the jury rejected this view of defendant\u2019s conduct.\nDefendant asserts the prison sentence of not less than twelve nor more than fifteen years constitutes cruel and unusual punishment in violation of Article I, Section 14, of the Constitution of North Carolina, and the Eighth Amendment to the Constitution of the United States.\nAs a basis for this contention, defendant asserts that the felony created by G.S. 14-22 is a lesser included offense of the felony created by G.S. 14-26.\nG.S. 14-22 provides: \u201cEvery person convicted of an assault with intent to commit a rape upon the body of any female shall be imprisoned in the State\u2019s prison not less than one nor more than fifteen years.\u201d\nG.S. 14-26 in pertinent part provides: \u201cIf any male person shall carnally know or abuse any female child, over twelve and under sixteen years of age, who has never before had sexual intercourse with any person, he shall be guilty of a felony and shall be fined or imprisoned in the discretion of the court. \u201d Authoritative decisions of this Court hold that imprisonment for ten years is the maximum permissible punishment for a violation of G.S. 14-26. State v. Blackmon, 260 N.C. 352, 132 S.E. 2d 880; State v. Grice, 265 N.C. 587, 144 S.E. 2d 659.\nThe differences between these statutes are set forth in detail by Chief Justice Parker in McClure v. State, 267 N.C. 212, 214-215, 148 S.E. 2d 15, 17. Repetition is unnecessary. The decision of this Court was stated succinctly by Chief Justice Parker as follows: \u201cThe felony set forth in G.S. 14-22 is not a less degree of the felony set forth in G.S. 14-26.\u201d\nDefendant calls attention to Cannon v. Gladden, 281 P. 2d 233 (1955), where the Supreme Court of Oregon held the portion of an Oregon statute authorizing the punishment of life imprisonment for the offense of assault with intent to commit rape was null and void as violative of the constitutional provision against cruel and unusual punishment. Another Oregon statute provided for a maximum sentence of not more than twenty years for either statutory or forcible rape. It was held that the penalty of life imprisonment for the assault was so disproportionate as to shock the moral sense of all reasonable men as to what is right and proper when the greater crime of rape was punishable by a sentence of not more than twenty years. North Carolina statutes are quite different. Rape is punishable by death or life imprisonment. Assault with intent to commit rape is punishable by imprisonment for a term of not less than one nor more than fifteen years.\nWhile we approve the diligence of defendant\u2019s' counsel, the conclusion reached is that the trial conducted by Judge McKin-non is altogether free from prejudicial error. Accordingly, the verdict and judgment will not be disturbed.\nNo error.", "type": "majority", "author": "BOBBITT, Chief Justice." } ], "attorneys": [ "Attorney General Morgan and Assistant Attorney General McDaniel for the State.", "John M. Fountain for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GEORGE HARRIS\nNo. 87\n(Filed 16 December 1970)\nRape \u00a7 18; Constitutional Law \u00a7 36\u2014 assault with intent to commit rape.\u2014 cruel and unusual punishment\nSentence of 12 to 15 years\u2019 imprisonment imposed upon defendant\u2019s conviction of assault with intent to commit rape does not constitute cruel and unusual punishment; it was immaterial to this question that the maximum permissible punishment for carnally knowing a female between the ages of twelve and sixteen is 10 years\u2019 imprisonment. G.S. 14-22; G.S. 14-26.\nAppeal by defendant from McKinnon, /., November 14, 1968 Session of Wake Superior Court, transferred for initial appellate review by the Supreme Court under an order entered pursuant to G.S. 7A-31 (b) (4).\nCriminal prosecution on an indictment which charged that defendant, on October 19, 1968, assaulted Annie Lee Harvey, a female, with intent to rape her, a violation of G.S. 14-22.\nDefendant was represented at trial by Garland B. Daniel, Esq., court-appointed counsel.\nThe State offered evidence tending to show the facts narrated below.\nAnnie Lee Harvey was employed at the Golden Eagle. On October 19,1968, after dark, she was walking along the sidewalk on South Blount Street. It was raining. As she approached an alley, she was walking \u201con the edge of the sidewalk right at the trees.\u201d Two men whom she had not previously seen walked up behind her and grabbed her, one on each side. She did not know either of these men. Despite her protests and struggles, they dragged her through the alley. Upon reaching an area back from the street, they threw her \u201cover in the weeds and grass.\u201d The two men were on their knees, one on each side of her. Both pulled at her panties and succeeded in getting them as far down as her knees. They exchanged talk as to which would be the first to have sexual intercourse with her. Although she protested, wrestled and tusseled, the two men made it unmistakably clear they intended to take turns in having sexual intercourse with her by force, without her consent, against her will, and notwithstanding any resistance she might make. She was saved from this fate by the intervention of Alton Collins, a State\u2019s witness, whom she did not know and who did not know either of the men who assaulted her.\nCollins had gone to Harris\u2019 poolroom on Blount Street to make a telephone call. Before entering, he stopped and stood under the awning at the entrance, \u201cshaking the water off (his) coat.\u201d He heard some loud talking between a woman and two men on the opposite side of the street. He heard the woman tell the two men \u201cto leave her alone, that she was a lady; (that) she couldn\u2019t go with them.\u201d When this occurred, Collins paid no further attention, walked into Harris\u2019 poolroom to make the telephone call, failed to reach his party, and then came back to the sidewalk. At that time, the men had pulled the woman off the sidewalk up into the entrance of the driveway or alley. As he watched, defendant had hold of the woman\u2019s left arm and the other man \u201chad her up under his arm\u201d and \u201cthey went out of my sight . . . but still (he) could hear them up in the alley.\u201d Collins crossed the street. Walter (Buster) Harris was with him. Upon reaching the entrance to the alley, Collins could hear the woman telling the men to leave her alone. Collins and Walter Harris tiptoed through the alley to the edge of the parking lot and got within two or three feet of the woman and the two men. Collins testified that \u201c(r)ight before this other gentleman, whoever he was, threw her on the ground, the defendant Harris told her she was going to have intercourse with him or die or however it was. Those weren\u2019t the exact words he used.\u201d\nWhen Collins observed that the woman had been thrown to the ground and was still protesting and struggling,