{ "id": 8572889, "name": "STATE OF NORTH CAROLINA v. WILLIE HORACE BRYANT", "name_abbreviation": "State v. Bryant", "decision_date": "1972-03-15", "docket_number": "No. 89", "first_page": "551", "last_page": "563", "citations": [ { "type": "official", "cite": "280 N.C. 551" } ], "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": "27 S.E. 2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "223 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613591 ], "opinion_index": 0, "case_paths": [ "/nc/223/0563-01" ] }, { "cite": "151 S.E. 2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "268 N.C. 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563551 ], "opinion_index": 0, "case_paths": [ "/nc/268/0532-01" ] }, { "cite": "116 S.E. 736", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "185 N.C. 685", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657547 ], "opinion_index": 0, "case_paths": [ "/nc/185/0685-01" ] }, { "cite": "81 S.E. 1092", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "166 N.C. 411", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269864 ], "opinion_index": 0, "case_paths": [ "/nc/166/0411-01" ] }, { "cite": "143 N.C. 659", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658722 ], "opinion_index": 0, "case_paths": [ "/nc/143/0659-01" ] }, { "cite": "138 N.C. 704", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270352 ], "opinion_index": 0, "case_paths": [ "/nc/138/0704-01" ] }, { "cite": "160 S.E. 577", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "201 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626433 ], "opinion_index": 0, "case_paths": [ "/nc/201/0494-01" ] }, { "cite": "100 S.E. 2d 52", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "246 N.C. 717", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628390 ], "opinion_index": 0, "case_paths": [ "/nc/246/0717-01" ] }, { "cite": "176 S.E. 2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "277 N.C. 197", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563713 ], "opinion_index": 0, "case_paths": [ "/nc/277/0197-01" ] }, { "cite": "184 S.E. 2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "279 N.C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571126 ], "opinion_index": 0, "case_paths": [ "/nc/279/0549-01" ] }, { "cite": "176 S.E. 2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "277 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563526 ], "opinion_index": 0, "case_paths": [ "/nc/277/0162-01" ] }, { "cite": "384 U.S. 855", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12047997 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0855-01" ] }, { "cite": "396 U.S. 77", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11328585 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/396/0077-01" ] }, { "cite": "28 L.Ed. 2d 1", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 11712077 ], "opinion_index": 0, "case_paths": [ "/us/401/0222-01" ] }, { "cite": "181 S.E. 2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "279 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565516 ], "opinion_index": 0, "case_paths": [ "/nc/279/0001-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "171 S.E. 2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "276 N.C. 86", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560195, 8560213, 8560254 ], "opinion_index": 0, "case_paths": [ "/nc/276/0086-01", "/nc/276/0086-02", "/nc/276/0086-03" ] }, { "cite": "93 S.E. 2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219561 ], "opinion_index": 0, "case_paths": [ "/nc/244/0380-01" ] }, { "cite": "124 S.E. 2d 728", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "256 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574093 ], "opinion_index": 0, "case_paths": [ "/nc/256/0593-01" ] }, { "cite": "142 S.E. 2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "264 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574116 ], "opinion_index": 0, "case_paths": [ "/nc/264/0488-01" ] }, { "cite": "144 S.E. 2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "265 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576565 ], "opinion_index": 0, "case_paths": [ "/nc/265/0626-01" ] }, { "cite": "165 S.E. 2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "275 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557779 ], "opinion_index": 0, "case_paths": [ "/nc/275/0061-01" ] }, { "cite": "185 S.E. 2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "279 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572032 ], "opinion_index": 0, "case_paths": [ "/nc/279/0689-01" ] }, { "cite": "105 S.E. 2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "opinion_index": 1 }, { "cite": "249 N.C. 134", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610635, 8610540 ], "year": 1958, "opinion_index": 1, "case_paths": [ "/nc/249/0134-02", "/nc/249/0134-01" ] }, { "cite": "42 S.E. 2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "opinion_index": 1 }, { "cite": "227 N.C. 383", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625401 ], "year": 1947, "opinion_index": 1, "case_paths": [ "/nc/227/0383-01" ] }, { "cite": "154 S.E. 402", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1930, "opinion_index": 1 }, { "cite": "199 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599787 ], "year": 1930, "opinion_index": 1, "case_paths": [ "/nc/199/0321-01" ] }, { "cite": "150 S.E. 2d 212", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 1 }, { "cite": "268 N.C. 209", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560964 ], "year": 1966, "opinion_index": 1, "case_paths": [ "/nc/268/0209-01" ] }, { "cite": "8 S.E. 2d 474", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "opinion_index": 1 }, { "cite": "217 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608545 ], "year": 1940, "opinion_index": 1, "case_paths": [ "/nc/217/0399-01" ] }, { "cite": "84 S.E. 2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "page": "547" } ], "opinion_index": 1 }, { "cite": "241 N.C. 156", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604316 ], "year": 1954, "pin_cites": [ { "page": "159" } ], "opinion_index": 1, "case_paths": [ "/nc/241/0156-01" ] }, { "cite": "124 S.E. 2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "843" } ], "opinion_index": 1 }, { "cite": "256 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573643 ], "year": 1962, "pin_cites": [ { "page": "499" } ], "opinion_index": 1, "case_paths": [ "/nc/256/0494-01" ] }, { "cite": "27 S.E. 2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "223 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613591 ], "opinion_index": 1, "case_paths": [ "/nc/223/0563-01" ] }, { "cite": "151 S.E. 2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "268 N.C. 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563551 ], "opinion_index": 1, "case_paths": [ "/nc/268/0532-01" ] }, { "cite": "116 S.E. 736", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "opinion_index": 1 }, { "cite": "185 N.C. 685", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657547 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nc/185/0685-01" ] }, { "cite": "81 S.E. 1092", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "pin_cites": [ { "page": "1093" } ], "opinion_index": 1 }, { "cite": "166 N.C. 411", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269864 ], "weight": 2, "pin_cites": [ { "page": "414" } ], "opinion_index": 1, "case_paths": [ "/nc/166/0411-01" ] }, { "cite": "160 S.E. 577", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "201 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626433 ], "opinion_index": 1, "case_paths": [ "/nc/201/0494-01" ] }, { "cite": "100 S.E. 2d 52", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "246 N.C. 717", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628390 ], "opinion_index": 1, "case_paths": [ "/nc/246/0717-01" ] }, { "cite": "176 S.E. 2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "277 N.C. 197", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563713 ], "opinion_index": 1, "case_paths": [ "/nc/277/0197-01" ] }, { "cite": "184 S.E. 2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "238" } ], "opinion_index": 1 }, { "cite": "279 N.C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571126 ], "pin_cites": [ { "page": "554" } ], "opinion_index": 1, "case_paths": [ "/nc/279/0549-01" ] }, { "cite": "176 S.E. 2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "277 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563526 ], "opinion_index": 1, "case_paths": [ "/nc/277/0162-01" ] }, { "cite": "144 S.E. 2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "265 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576565 ], "opinion_index": 1, "case_paths": [ "/nc/265/0626-01" ] }, { "cite": "165 S.E. 2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "275 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557779 ], "opinion_index": 1, "case_paths": [ "/nc/275/0061-01" ] } ], "analysis": { "cardinality": 1052, "char_count": 27833, "ocr_confidence": 0.559, "pagerank": { "raw": 8.519463946269469e-07, "percentile": 0.9764959269826156 }, "sha256": "121f49bb5a46d8c3fb2ff7fe54e379e9741b55dda0f93881b85b068efcad2ebd", "simhash": "1:9360cf22761f8431", "word_count": 4793 }, "last_updated": "2023-07-14T16:17:02.302234+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice Sharp joins in this dissenting opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. WILLIE HORACE BRYANT" ], "opinions": [ { "text": "HIGGINS, Justice.\nThe State\u2019s evidence discloses ample support for every essential element of the capital offense charged in the indictment. The defendant as a witness for himself corroborates all essential elements of the offense except the use of force. Although he claimed the prosecuting witness consented, even so, he admitted when he approached her automobile he had an open knife in his pocket, \u201c. . . (B)ecause I didn\u2019t know what I was liable to run into when I got in the car.\u201d The evidence required its submission to the jury on the capital felony charged. State v. Shutt, 279 N.C. 689, 185 S.E. 2d 206; State v. Primes, 275 N.C. 61, 165 S.E. 2d 225; State v. Carter, 265 N.C. 626, 144 S.E. 2d 826; State v. Bruton, 264 N.C. 488, 142 S.E. 2d 169; State v. Thompson, 256 N.C. 593, 124 S.E. 2d 728; State v. Stephens, 244 N.C. 380, 93 S.E. 2d 431.\nThe defendant stressfully contends he is entitled to a new trial upon the ground the court committed error in permitting Officers Strickland and Merritt, over his objection, to testify with respect to his in-custody admissions that he had choked the prosecuting witness and had placed a knife in her side prior to the acts of intercourse. While there was evidence he had been given the required warnings, it was admitted he had not waived his right to counsel, had not been given a voir dire hearing, and the court had not found facts showing his statements and admissions were voluntary.\nIn support of his demand for a new trial the defendant cites State v. Catrett, 276 N.C. 86, 171 S.E. 2d 398; Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694; and State v. Lynch, 279 N.C. 1, 181 S.E. 2d 561.\nIn particular the defendant relies on the following from Catrett: \u201c. . . (I)n-custody statements attributed to a defendant, when offered by the State and objected to by the defendant, are inadmissible for any purpose unless, after a voir dire hearing in the absence of the jury, the court, based upon sufficient evidence, makes factual findings that such statements were voluntarily and understanding^ made by the defendant after he had been fully advised as to his constitutional rights. . . . (T)estimony . . . absent a voir dire hearing and factual determinations as indicated above, was not admissible either as substantive evidence or for impeachment purposes.\u201d\nCatrett was decided on June 6, 1970, and was based on our interpretation of the exclusionary rule in Miranda. Some other appellate courts made this same interpretation. However, on February 24, 1971, the Supreme Court of the United States decided Harris v. New York, 28 L.Ed. 2d 1, reviewing the Miranda exclusionary rule. In Harris the Court held \u201cthat petitioner\u2019s credibility was appropriately impeached by use of his earlier conflicting statements\u201d which were made during in-custody interrogation, without counsel, and without waiver of rights.\nIn our case the use of the defendant\u2019s in-custody admissions to impeach and contradict his testimony before the jury was proper and his objections thereto are not sustained. The defendant\u2019s admissions were not offered to make out the prosecution\u2019s case. They were offered to tear down the defendant\u2019s defense. State v. Lynch, supra, did not involve admissions offered for the purpose of impeaching the defendant\u2019s testimony before the jury.\nThe decision in Harris warranted the use of the impeaching testimony. In view of the importance we attach to the Harris decision and its current unavailability to some of our trial courts, we quote extensively from it:\n\u201cSome comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court\u2019s holding and cannot be regarded as controlling. Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution\u2019s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.\nifc # jJ\u00ed # \u2756 \u2756 %\nIt is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government\u2019s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths.Such an extension of the Weeks doctrine would be a perversion of the Fourth Amendment.\n. . . (T)here is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government\u2019s disability to challenge his credibility. 347 U.S., at 65, 98 L.Ed. at 507.\n* $ \u2021 $ * * \u2021\nEvery criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. See United States v. Knox, 396 U.S. 77, 24 L.Ed. 2d 275, 90 S.Ct. 363 (1969); cf Dennis v. United States, 384 U.S. 855, 16 L.Ed. 2d 973, 86 S.Ct. 1840 (1966). Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment.\nThe shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner\u2019s credibility was appropriately impeached by use of his earlier conflicting statements.\u201d\nThe defendant has objected to the court\u2019s failure to submit to the jury the lesser included offense of assault with intent to commit rape. This objection cannot be sustained. All the evidence, including the defendant\u2019s testimony, disclosed completed acts of intercourse. The factual dispute was whether the acts were voluntary or as a result of defendant\u2019s use of force. Even consent if induced by fear, fright, or coercion, is equivalent to physical force. State v. Primes, supra; State v. Carter, supra. The court should not submit an issue in the absence of some evidence which tended to support it. The rule is stated in State v. McNeil, 277 N.C. 162, 176 S.E. 2d 732. \u201cThe court (trial) charged the jury to return a verdict: (1) guilty of rape; (2) guilty of rape with a recommendation that punishment be imprisonment for life in the State\u2019s prison; or (3) not guilty. Failure to find the defendant guilty of (1) or (2) required a verdict of not guilty. The defendant was not prejudiced by the charge which required the jury to acquit of all included lesser offenses. There was no evidence of the lesser included offenses, and the court was correct in refusing to permit the jury to consider them. (Citing authorities.) \u201d\nState v. Carnes, 279 N.C. 549, 184 S.E. 2d 235, states the rule: \u201cThe necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor.\u201d\nState v. Murry, 277 N.C. 197, 176 S.E. 2d 738, states the rule: \u201cThe necessity of instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor. (Citing authorities.) \u201d\nState v. Green, 246 N.C. 717, 100 S.E. 2d 52, is not in point. The indictment charged \u201cthe felony and crime of rape upon a 16-year-old female child by a male person over 18 years of age.\u201d Upon arraignment the solicitor announced: \u201cThe State will not ask for a verdict of guilty of the capital crime carrying the death penalty, but will ask for a verdict of guilty of rape, with the recommendation of life imprisonment or guilty of attempt to commit rape, as the facts and law may justify.\u201d\nIn the case of State v. Smith, 201 N.C. 494, 160 S.E. 577, the defendant was indicted for first degree burglary and rape. The court said: \u201cAccording to her (prosecutrix) testimony, which contains a full recital of the crime, the prisoner was guilty of rape; according to his own evidence he was guilty of no offense. There is no aspect of the case that would justify a verdict merely of a simple assault or an assault with intent, and refusal to instruct the jury in reference to the lesser offense did not constitute reversible error. S. v. White, 138 N.C. 704; S. v. Kendall, 143 N.C. 659.\u201d\nIn State v. Lance, 166 N.C. 411, 81 S.E. 1092, the defendant was tried for rape. \u201cIt has been repeatedly held that the judge upon a proper state of facts can tell the jury that if they believe the evidence they can find the prisoner guilty of murder or nothing. It would have been no error to have so charged on this occasion.\u201d (Rape instead of murder.) In State v. Williams, 185 N.C. 685, 116 S.E. 736, the Court labored long and hard to get around State v. Lance, supra, to hold assault should have been submitted. In Williams the Court stated the evidence of the prosecutrix at great length, emphasizing its inconsistencies to her discredit, and concluded: \u201cHer conduct was not by any means, that of an outraged woman, and certainly not of a chaste or virtuous woman, but she acted in a perfectly natural and normal way of a lewd and lascivious female. . . . We recite this much of the testimony to show how carefully judges should charge juries in such cases, so that they may subject the testimony to close examination and scrutiny, as the accusation is one very easy to make and very hard for the man to rebut, or overcome.\u201d The court ordered a new trial for failure to submit assault with intent \u201c . . . (T)o the end that justice may be administered . . . .\u201d\nThe decision in Williams appears to be out . of line with the other well-considered cases which require supporting evidence in order to justify submission of any lesser included offenses. In State v. Miller, 268 N.C. 532, 151 S.E. 2d 47, the indictment charged rape. The court submitted five possible verdicts. The jury found guilty on No. 3 \u2014 assault with intent. On the defendant\u2019s appeal this Court found no error prejudicial to him in the trial. The State of course could not appeal. This Court affirmed the judgment on the theory discussed by this Court in State v. Bentley, 223 N.C. 563, 27 S.E. 2d 738.\n\u201cIf we are to understand the appellant to base his demand for discharge merely on the fact that the jury by an act of grace has found him guilty of a minor offense, of which there is no evidence, instead of the more serious offense charged, this is to look a gift horse in the mouth; more especially, since the conclusion that there is no evidence must be reached by conceding that all the evidence, including the admission of the defendant, points to a graver crime. Such verdicts occur now and then, despite the efforts of the courts to discourage them. When they do, although illogical or even incongruous, since they are favorable to the accused, it is settled law that they will not be disturbed. (Citing numerous cases.)\u201d\n\u2021\u2021\u2021\u2021\u2021\u2021\u2021\u2021\u2021\n\u201c . . . (T)he judge must confine himself to the evidence in giving his instructions to the jury: \u2018He shall state in a plain and correct manner the evidence given in the case and declare and explain the law rising thereon.\u2019 Instruction under the statute is the law geared to the facts. In informing the jury as to their duty, we have never held that it is incumbent on the court, under this statute, to go beyond the evidence or advise the jury that they may ignore its absence and find the accused guilty of a minor offense, which could only be reached by the process of arbitration.\u201d\nThe defendant\u2019s objection to the court\u2019s failure to submit assault with intent or assault on a female is not sustained. The court\u2019s instruction in this case harmonizes with the well established rule that in order to submit a lesser included offense there must be evidence of that lesser offense. \u201cThe presence of such evidence is the determinative factor.\u201d State v. Carnes, supra.\nThe defendant\u2019s other objections, not herein referred to, have been examined and have been found to be free from legal objection. Hence, in this trial, verdict, and judgment we find\nNo error.", "type": "majority", "author": "HIGGINS, Justice." }, { "text": "Chief Justice Bobbitt\ndissenting.\nIn my opinion, defendant is entitled to a new trial because of the court\u2019s refusal to submit assault with intent to commit rape as a permissible verdict.\nAn indictment for rape includes an assault with intent to commit rape. State v. Birckhead, 256 N.C. 494, 499, 124 S.E. 2d 838, 843 (1962). \u201cThe necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The \u2018presence of such evidence is the determinative factor.\u201d State v. Hicks, 241 N.C. 156, 159, 84 S.E. 2d 545, 547 (1954); State v. Carnes, 279 N.C. 549, 554, 184 S.E. 2d 235, 238 (1971), and cases cited.\nWhere the State\u2019s evidence, if believed in its entirety, tends to establish all elements of the crime of rape, and the defendant, while admitting he had sexual intercourse with the prose-cutrix, testifies it was with her consent, is the court required to submit assault with intent to commit rape as a permissible verdict? This question was fully considered in State v. Williams, 185 N.C. 685, 116 S.E. 736 (1923), and answered, \u201cYes.\u201d In Williams, it was held that the defendant was entitled to a new trial on account of the court\u2019s failure to so instruct the jury and that the verdict of guilty of rape did not cure the error.\nIn State v. Green, 246 N.C. 717, 100 S.E. 2d 52 (1957), the State\u2019s evidence tended to show the defendant, a married man, raped the prosecutrix, a sixteen-year-old girl. The defendant, while admitting he had sexual intercourse with the prose-cutrix, testified it was with her consent. The defendant was convicted of an assault with intent to commit rape and this Court found \u201cNo error.\u201d Justice (later Chief Justice) Parker, speaking for the Court, said: \u201cIt would have been error for the court not to have charged the jury on the lesser offenses, as it did. S. v. Williams, 185 N.C. 685, 116 S.E. 736.\u201d\nThe consent of the prosecutrix when the act of sexual intercourse takes place is a defense to the charge of rape. However, this would not preclude a finding that, earlier in their relationship, the defendant had assaulted the prosecutrix with the intent to gratify his passion on her person notwithstanding any resistance she might make. The jurors are the sole judges of the credibility of the witnesses; they may believe all, or a part, or none of what a witness has1 testified. When there is conflicting evidence as to what occurred between the prosecutrix and the defendant, it is proper and customary for the trial judge to so instruct the jury; and in such case it is required that the lesser included offense of assault with intent to commit rape be submitted.\nDecisions in which the rule stated in the preceding paragraph has been applied include State v. Kiziah, 217 N.C. 399, 8 S.E. 2d 474 (1940); State v. Shull, 268 N.C. 209, 150 S.E. 2d 212 (1966); State v. Miller, 268 N.C. 532, 151 S.E. 2d 47 (1966). In each, the prosecutrix testified the defendant had sexual intercourse with her by force and against her will; the defendant testified he had sexual intercourse with the prose-cutrix with her consent.\nIn Kiziah, the defendant was indicted for rape. He was placed on trial for assault with intent to commit rape. The jury returned a verdict of guilty of assault on a female.\nIn Shull, the defendant was indicted for rape. He was placed on trial for assault with intent to commit rape or assault on a female as the evidence might warrant. The defendant was convicted of an assault with intent to commit rape.\nIn Miller, each of the five defendants was indicted for rape and placed on trial for rape. Each was convicted of assault with intent to commit rape. On appeal, the defendants assigned as error, inter alia, \u201cthat the court instructed the jury on assault with intent to commit rape when there was no evidence of an assault to commit rape.\u201d The following are excerpts from the opinion of Justice Higgins:\n(A) \u201cThe critical issue in this case is whether the acts of intercourse (which the witness and all defendants admitted) were by force and against the will of Ribbie Parham as she testified, or with her consent as each of the defendants testified. The jury heard the witnesses and observed their demeanor, and returned verdicts \u2018guilty of assault with intent to commit rape.\u2019 \u201d (B) \u201cThe court instructed the jury to consider five possible verdicts: (1) rape; (2) rape with a recommendation that punishment should be imprisonment for life; (3) assault with intent to commit rape; (4) assault on a female; (5) not guilty.\u201d (C) \u201cThe court gave clear and explicit instructions as to the rules of law applicable to the facts as the jury might find them to be from the evidence. The charge was correct.\u201d\nThe present case is distinguishable, as were Williams and Green, from cases in which the uncontradicted evidence shows the crime of rape was committed, e.g., State v. Jackson, 199 N.C. 321, 154 S.E. 402 (1930), where the defendant\u2019s evidence related solely to an alibi; State v. Brown, 227 N.C. 383, 42 S.E. 2d 402 (1947), where the defendant\u2019s evidence related solely to his plea of insanity; State v. Jones, 249 N.C. 134, 105 S.E. 2d 513 (1958), where the defendant offered no evidence.\nThe majority opinion cites as authority for the court\u2019s refusal to submit assault with intent to commit rape our decisions in State v. Carter, 265 N.C. 626, 144 S.E. 2d 826 (1965); State v. Primes, 275 N.C. 61, 165 S.E. 2d 225 (1969); State v. McNeil, 277 N.C. 162, 176 S.E. 2d 732 (1970); State v. Murry, 277 N.C. 197, 176 S.E. 2d 738 (1970); State v. Smith, 201 N.C. 494, 160 S.E. 577 (1931); and State v. Lance, 166 N.C. 411, 81 S.E. 1092 (1914). In each, the defendant was convicted of rape; and in all except Primes and Lance the testimony of the prosecutrix as to what occurred was uncontradicted.\nIn Carter, where the prosecutrix was a nine-year-old girl, the defendant testified he was in no way involved and offered alibi evidence.\nIn Primes, the defendant took the stand and testified he had sexual intercourse with the prosecutrix with her consent. The jury was instructed to say by their verdict whether they found the defendant \u201cguilty of rape as charged in the bill of indictment; guilty of rape, with recommendation that his punishment be imprisonment for life in the State\u2019s prison; guilty of an assault with intent to commit rape; or guilty of an assault upon a female, he being a male person above the age of eighteen years; or not guilty.\u201d\nIn McNeil, the defendant did not testify or offer evidence.\nIn Murry, where the prosecutrix was an eleven-year-old girl, the defendant testified he was in no way involved and offered alibi evidence.\nIn Smith, there was no evidence in contradiction of the prosecutrix\u2019s testimony except the defendant\u2019s alibi.\nIn Lance, the defendant requested the court to charge that the jury might return any one of these verdicts: (1) guilty of rape; (2) guilty of assault with intent to commit rape; (3) guilty of assault with a deadly weapon; (4) guilty of simple assault; or (5) not guilty. The judge refused to submit whether the defendant was guilty of an assault with a deadly weapon or whether he was guilty of simple assault. He instructed the jury it might return any one of these verdicts: (1) guilty of rape; (2) guilty of assault with intent to commit rape; (3) guilty of an assault on a female by a male person above the age of eighteen years; or (4) not guilty. In a split decision (3 to 2), this Court approved the instructions given by the trial judge. Speaking for the majority, Chief Justice Clark specifically approved the following instruction: \u201c \u2018If the jury under the law and the evidence should find the prisoner guilty of rape, as charged, they will not consider or pass upon the question of his guilt of any lesser offense. But if they should not find him guilty of rape, then the jury will consider the question whether or not he be guilty of an assault with intent to commit rape,\u2019 etc.\u201d 166 N.C. at 414, 81 S.E. at 1093. Speaking for the minority, Justice (later Chief Justice) Hoke dissented on the ground that under the evidence the defendant was entitled to have submitted whether he was guilty of an assault with a deadly weapon or of a simple assault.\nIn State v. Bentley, 223 N.C. 563, 27 S.E. 2d 738 (1943), the court did not submit whether the defendant was guilty of an assault with a deadly weapon; the jury returned the verdict of guilty of an assault with a deadly weapon on its own initiative and in the absence of any instruction that this was a permissible verdict.\nJustice Sharp joins in this dissenting opinion.", "type": "dissent", "author": "Chief Justice Bobbitt" } ], "attorneys": [ "Robert Morgan, Attorney General, by Associate Attorney General Walter E. Ricks, III and Deputy Attorney General R. Bruce White, Jr., for the State.", "James E. Ezzell, Jr., and Thomas W. Henson for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIE HORACE BRYANT\nNo. 89\n(Filed 15 March 1972)\n1. Rape \u00a7 5\u2014 sufficiency of evidence\nThe State\u2019s evidence was sufficient to be submitted to the jury on the issue of defendant\u2019s guilt of rape where it tended to show that defendant had sexual intercourse with the prosecutrix after choking her and threatening her with a knife.\n2. Criminal Law \u00a7 75\u2014 in-custody statements \u2014 absence of waiver of counsel \u2014 admission for impeachment purposes\nIn this rape prosecution, defendant\u2019s in-custody admissions that he had choked the prosecutrix and had placed a knife at her side prior to the acts of intercourse were properly admitted for the limited purpose of impeaching defendant\u2019s testimony at the trial, notwithstanding defendant had not waived his right to counsel when the in-custody statements were made.\n3. Rape \u00a7 6\u2014 failure to submit assault with intent to rape\u2019\nIn this prosecution for rape, the trial court did not err in failing to submit to the jury the lesser included offense of assault with intent to commit rape, where all the evidence, including defendant\u2019s testimony, disclosed completed acts of intercourse, and the only factual dispute was whether the acts were voluntary or as a result of defendant\u2019s use of force.\nChief Justice Bobbitt dissenting.\nJustice Sharp joins in dissenting opinion.\nAppeal by defendant from Cowper, /., August 16, 1971 Criminal Session, Nash Superior Court. This case was docketed and argued at the Fall Term 1971 as No. 159.\nThe defendant, Willie Horace Bryant, by grand jury indictment proper in form, was charged with having committed the capital felony of rape upon Dorothy Whitehead. The alleged offense occurred in Nash County on June 5, 1971.\nUpon arraignment the defendant, through court-appointed counsel, entered a plea of not guilty. The record shows a jury acceptable both to the State and to the defendant, was selected and empaneled.\nAt the trial, Dorothy Whitehead, the prosecutrix, gave testimony here summarized except when quoted. On the night of June 5, 1971, she, her two children (ages three and four), and her cousin drove to her aunt\u2019s house a distance of about one-half mile from where the witness lived. \u201cAfter I put my cousin out I started on my way (home) and I heard someone holler and I thought it was her so I stopped .... When I did, Willie Horace Bryant jumped in the car with me. . . . After he jumped in he asked me to take him to Shorty Bridges. I noticed he had a knife in his hand. ... He was the one who directed me. . . . Each time I refused to do something he would stick the knife in my side.\u201d\nThe witness testified she drove, at defendant\u2019s direction, to a wooded area where he forced her to remove all her clothes and to submit to two acts of intercourse. When she attempted to resist he choked her and threatened her further by placing an open knife at her side. After the second act he permitted her to put on her clothes. In the meantime he had placed his open knife on the instrument board of the vehicle. While he was dressing outside the car she hid the knife under the seat and delivered it to the officers at the time she reported to them the full story of what had occurred.\nAfter re-entering the highway from the wooded area, the witness saw an outside drink box at a closed filling station. She asked the defendant to get her a soft drink. When he started toward the drink box she hurriedly drove away and immediately reported to members of her family and to the officers, describing fully what had occurred. She told the officers the defendant had choked her and threatened her with the knife which she delivered to the officers.\nAfter defense counsel vigorously cross-examined the prosecuting witness attempting to impeach her, the State for purpose of corroboration examined Deputy Sheriff Strickland who testified she reported to him and Sheriff Womble that the defendant had choked her and had placed the open knife at her side. This knife she recovered and delivered to the officers.\nThe defendant testified in his own defense. He said he stopped Dorothy\u2019s car and asked her to drive him to Shorty Bridges. She agreed. Thereafter, he had sexual relations with her twice, but with her consent \u2014 in fact at her suggestion. He admitted, however, at the time he entered the car, \u201cI had the knife because I\u2019m scared to walk along the highway. ... I didn\u2019t close it because it was in my pocket. . . . The reason I didn\u2019t take the knife out was because I didn\u2019t know what I was liable to run into when I got in the car.\u201d On cross-examination the solicitor, for purpose of impeachment, asked the defendant if he had not told Officers Merritt and Strickland that he had choked the girl and put the knife to her side. He denied having made the statements.\nAfter the defense rested, the State, for purpose of impeachment, called Deputy Sheriff Strickland who testified: \u201cOfficer Merritt and I brought him on over to the office and read the warrant to him and gave him a copy of it and he told me that he got in the car with Dorothy, took this switchblade pocketknife and held it in her side and told her to take him to Shorty Bridges\u2019 house. . . . (W)hen they got to Taylor\u2019s Store he made her turn right and . . . pull into a farm path . . . he told her he wanted to have intercourse with her. . . . (S)he first refused him and he took his hands and put around her neck and choked her with both of his hands.\u201d The solicitor offered the statements solely for the purpose of impeaching the defendant\u2019s testimony. The court was careful to instruct the jury that it was admitted for that purpose only.\nThe court charged the jury to return a verdict of (1) guilty of rape, or (2) guilty of rape with a recommendation the punishment be imprisonment for life in the State\u2019s prison, or (3) not guilty. Defense counsel requested the court to submit, as a permissible verdict, assault with intent to commit rape. The court refused and the defendant excepted.\nThe jury returned its verdict finding the defendant guilty of rape with a recommendation the punishment be imprisonment for life in the State\u2019s prison. From the judgment of the court in accordance with the jury\u2019s verdict, the defendant appealed.\nRobert Morgan, Attorney General, by Associate Attorney General Walter E. Ricks, III and Deputy Attorney General R. Bruce White, Jr., for the State.\nJames E. Ezzell, Jr., and Thomas W. Henson for defendant appellant." }, "file_name": "0551-01", "first_page_order": 571, "last_page_order": 583 }