{ "id": 8576314, "name": "STATE OF NORTH CAROLINA v. CEPHUS JEROME DAWSON, NATHANIEL SMITH, and SAMUEL VEREANELL ROSEBORO", "name_abbreviation": "State v. Dawson", "decision_date": "1972-07-31", "docket_number": "No. 36", "first_page": "645", "last_page": "658", "citations": [ { "type": "official", "cite": "281 N.C. 645" } ], "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": "187 S.E. 2d 111", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 551", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572889 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0551-01" ] }, { "cite": "157 S.E. 2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "657" } ], "opinion_index": 0 }, { "cite": "272 N.C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570396 ], "year": 1967, "pin_cites": [ { "page": "51" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0048-01" ] }, { "cite": "76 S.E. 2d 346", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "348" } ], "opinion_index": 0 }, { "cite": "238 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599788 ], "year": 1953, "pin_cites": [ { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/nc/238/0094-01" ] }, { "cite": "184 S.E. 2d 845", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "849" } ], "opinion_index": 0 }, { "cite": "280 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569578 ], "year": 1971, "pin_cites": [ { "page": "7" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0001-01" ] }, { "cite": "57 Mont. 480", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 4723359 ], "weight": 2, "year": 1920, "pin_cites": [ { "page": "486" }, { "page": "943" } ], "opinion_index": 0, "case_paths": [ "/mont/57/0480-01" ] }, { "cite": "169 S.E. 2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "835" } ], "opinion_index": 0 }, { "cite": "275 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559222 ], "year": 1969, "pin_cites": [ { "page": "558-59" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0554-01" ] }, { "cite": "189 S.E. 2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "176 S.E. 2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563526 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0162-01" ] }, { "cite": "176 S.E. 2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563552 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0174-01" ] }, { "cite": "57 Mont. 480", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 4723359 ], "weight": 2, "year": 1920, "opinion_index": 1, "case_paths": [ "/mont/57/0480-01" ] }, { "cite": "169 S.E. 2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 1 }, { "cite": "275 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559222 ], "year": 1969, "pin_cites": [ { "page": "558" } ], "opinion_index": 1, "case_paths": [ "/nc/275/0554-01" ] } ], "analysis": { "cardinality": 1062, "char_count": 29086, "ocr_confidence": 0.51, "pagerank": { "raw": 2.9281548420033687e-07, "percentile": 0.8471376130423048 }, "sha256": "c93672268a8b34b3692c990d13b8cd302104837b0b6774cd8831a1bad68fbe7e", "simhash": "1:232bd128317e0d33", "word_count": 5000 }, "last_updated": "2023-07-14T21:53:41.611741+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. CEPHUS JEROME DAWSON, NATHANIEL SMITH, and SAMUEL VEREANELL ROSEBORO" ], "opinions": [ { "text": "BOBBITT, Chief Justice.\nDefendants\u2019 assignments of error based on exceptions to the denial of their motions for severance are without merit. Defendants were jointly indicted in a single bill for the rape of Mrs. Edell Hughes on July 18, 1971. The evidence upon which the State relied for the conviction of each relates to a single transaction and involves all defendants.\nThe record does not disclose what reason, if any, was advanced in the trial court in support of the motions for severance. In this Court, Smith and Roseboro assert that they were prejudiced by their trial with Dawson because the State\u2019s evidence tended to show Dawson had actual sexual intercourse with Mrs. Hughes but that their guilt, if any, rested on evidence tending to show that they aided and abetted Dawson in his commission of the crime of rape.\nIt was proper and appropriate for the three defendants to be tried together. The court properly instructed the jury that they would return verdicts of not guilty as to Smith and Rose-boro if they failed to find beyond a reasonable doubt that Dawson committed the actual completed crime of rape. Too, the court properly instructed the jury that, if they found Dawson guilty of rape, they would consider and determine separately whether Smith was guilty of rape as an aider and abettor and whether Roseboro was guilty of rape as an aider and abettor. Properly, the court gave a separate charge or mandate as1 to each defendant in respect of the essential findings necessary to warrant a verdict of guilty as to that defendant.\nDefendants have failed to show prejudice on account of the denials of their motions for severance. No evidence of any statement made by any defendant was admitted which tended to incriminate or prejudice any other defendant.\nThe jury was selected in the manner described and approved in State v. Perry, 277 N.C. 174, 176 S.E. 2d 729 (1970), and approved in State v. McNeil, 277 N.C. 162, 176 S.E. 2d 732 (1970), and in State v. Willis, ante 558, 189 S.E. 2d 190 (1972). There is no merit in defendants\u2019 assignment of error challenging this jury selection procedure.\nDefendants assign as error the denial of their counsel\u2019s request that he be permitted to question the prospective jurors as to their fitness and competency to serve as jurors.\nThe agreed case on appeal contains the following: \u201cAfter the selection of the twelve jurors had been completed for the State, the attorney for the defendants requested permission \u2022of the presiding Judge that he be permitted to ask questions of the jurors on behalf of the defendants in the selection of the jury. The Court denied the request of the attorney for the defendants and informed counsel for the defendants that said \u2022counsel will not direct their own questions to the jury. Counsel for the Defendants thereupon made a request of the presiding Judge that he be allowed to conduct personal interrogation of each of the jurors, please. The presiding Judge denied the request and required counsel for the defendants to present the questions to the presiding Judge who would conduct his own voir dire. Dependants\u2019 Exception No. 3.\u201d\nA motion by the Attorney General suggesting diminution of the record was allowed by this Court. Defendants interposed no objection. Pursuant thereto an addendum was filed which contains a full transcript of the jury selection proceedings. The transcript discloses the following:\nAfter twelve persons were called and seated in the jury box, the presiding judge proceeded to question these prospective jurors as to whether any of them knew (1) any of the defendants, (2) defendants\u2019 counsel, (3) the solicitor, (4) Mrs. Hughes, (5) Viola Collins, (6) Larry McMillan or (7) George Dudley. Each prospective juror who gave an affirmative response was then questioned closely by the court with reference to whether his (her) relationship would affect his (her) ability to base his (her) verdict solely on the evidence. Each juror stated his (her) name, address, and place of employment. In response to the court\u2019s inquiry, the solicitor announced that the State did not wish to challenge any of the jurors but was satisfied with those then seated in the jury box.\nAfter the State had accepted the original twelve, the court asked defendants\u2019 counsel if he wished \u201cthe Court to ask any additional questions.\u201d Defendants\u2019 counsel stated that he \u201cwould like permission to ask questions on behalf of the defendants [himself], if the Court would permit it.\u201d To this request, the presiding judge replied that he would be happy to ask any questions defendants\u2019 counsel wanted him to ask, but that under the procedure they were using counsel \u201cwill not direct their own questions to the jury.\u201d Thereafter, the judge did ask all questions he was requested to ask by defendants\u2019 counsel, including questions addressed to particular prospective jurors as well as to those addressed to all. At the conclusion of this further questioning by the court, defendants\u2019 counsel challenged peremptorily four of the prospective jurors and accepted eight of them. The State accepted all the four prospective jurors called to replace the four challenged peremptorily by defendants. This procedure continued until the twelve who were sworn and empaneled had been accepted by the State and by defendants.\nThe transcript contains no entry of an objection or exception by defendants\u2019 counsel to the jury selection procedure.\nPrior to final acceptance, the State had used only one of the twenty-seven peremptory challenges to which it was entitled under G.S. 9-21 (b), and defendants had used only eight of the forty-two peremptory challenges to which they were entitled under G.S. 9-21 (a).\nG.S. 9-15(a) provides: \u201cThe court, or any party to an action, civil or criminal, shall be allowed, in selecting the jury, to make inquiry as to the fitness and competency of any person to serve as a juror, without having such inquiry treated as a challenge of such person, and it shall not be considered by the court that any person is challenged as a juror until the party shall formally state that such person is so challenged.\u201d\nIn State v. Allred, 275 N.C. 554, 558-59, 169 S.E. 2d 833, 835 (1969), we quoted with approval the following from State v. Brooks, 57 Mont. 480, 486, 188 P. 942, 943 (1920), viz: \u201cThe voir dire examination of jurors is a right secured to the defendant by the statutes and has a definite double purpose: First, to ascertain whether there exist grounds for challenge for cause; and, second, to enable counsel to exercise intelligently the peremptory challenges allowed by law.\u201d\nAlthough G.S. 9-15 (a) assures a defendant of the right to have due inquiry made as1 to the competency and fitness of any person to serve as a juror, the actual questioning of prospective jurors to elicit the pertinent information may be conducted either by the court or by counsel for the State and counsel for the defendant. The trial judge, in his discretion, may decide which course to pursue in a particular case. If the court, when it conducts the questioning, declines to ask a question requested by the defendant\u2019s counsel, an exception may be noted so that an appellate court can consider the propriety, pertinence and substance of such question. The procedure followed in the present case avoided repetitive questioning without precluding or restricting any inquiry suggested and requested by defendants\u2019 counsel. The procedure followed was not violative of G.S. 9-15 (a) or otherwise objectionable, and defendants have failed to show any prejudice on account thereof. Hence, the assignment based on what appears in the record as \u201cDefendants\u2019 Exception No. 3\u201d is without merit.\nEach defendant assigns as error the denial of his motion for judgment as in case of nonsuit. In testing its sufficiency, the evidence must be considered in the light most favorable to the State. Contradictions and discrepancies, even in the State\u2019s evidence, are matters for the jury and do not warrant nonsuit. State v. Murphy, 280 N.C. 1, 7, 184 S.E. 2d 845, 849 (1971), and cases cited.\nAlthough the State\u2019s evidence strongly suggests that Mrs. Hughes, while walking along Pine Log Road, was grabbed, struck, and taken from the road, and that defendants or one or more of them were involved in these events, there was no evidence sufficient to identify any of defendants until the testimony of Viola Collins and Larry McMillan was introduced, indicating that they observed the three defendants in the area behind the Sherwood Drive-In. The State\u2019s case against defendants rests upon what happened there, not upon whether defendants or any of them were involved in taking her to that location.\nThere was plenary evidence that Dawson raped Mrs. Hughes and is guilty as principal in the first degree. The guilt of Smith and Roseboro turns on the application of the legal principles quoted in the following paragraph:\n\u201cAll who are present at the place of a crime and are either aiding, abetting, assisting, or advising in its commission, or are present for such purpose to the knowledge of the actual perpetrator, are principals and equally guilty. [Citations.] An aider and abettor is one who advises, counsels, procures, or encourages another to commit a crime. [Citations.] To render one who does not actually participate in the commission of a crime guilty of the offense committed there must be some evidence tending to show that he, by word or deed, gave active encouragement to the perpetrator of the crime or by Ms conduct made it known to such perpetrator that he was standing by to lend assistance when and if it should become necessary. [Citation.]\u201d State v. Ham, 238 N.C. 94, 97, 76 S.E. 2d 346, 348 (1953). Decisions in accord are cited in State v. Aycoth, 272 N.C. 48, 51, 157 S.E. 2d 655, 657 (1967).\nThere was evidence tending to show that Smith and Roseboro were standing by while Dawson was raping Mrs. Hughes; that they were undertaking to protect Dawson from interference; that each of them obstructed the attempts of Viola Collins and of Larry McMillan to rescue Mrs. Hughes from Dawson; and that the three defendants, together, fled from the scene while Viola Collins was trying to telephone the police. Our preliminary statement sets forth the evidence in detail. When considered in the light most favorable to the State, it was sufficient to support the conviction of Smith and of Roseboro of the crime of rape as principals in the second degree.\nDefendants assign as error the conditional exclusion of two black girls from the courtroom, contending the incident was prejudicial to defendants.\nThe record shows that immediately after Viola Collins testified that she saw Dawson \u201con top of Mrs. Hughes,\u201d the following occurred: \u201cAt This point, the proceedings were interrupted by conduct in the Courtroom. The presiding Judge stopped the cross-examination and called two black girls who were sitting in the Courtroom. One in a green dress and the one next to her and told them to get up and get out of the Courtroom and when you decide to behave yourselves, you may come back. That either one or both of the girls laughed and the Judge said wait just a minute, what do you think is so funny. Whereupon the girl in the green dress said, T don\u2019t know.\u2019 Thereupon the Court called the girls up to the area between counsel table and the bench and asked them what is so funny. The girl in the green dress answered, \u2018Nothing.\u2019 The Court told her not to lean against the bench and instructed both girls to get out of the Courtroom and told them that when they decided to behave themselves, they could come back.\u201d\nIn view of the disruptive and unseemly conduct of the two girls, the requirement that they leave the courtroom until they decided to behave themselves was necessary if the trial was to continue under circumstances of judicial decorum and fairness to all concerned. Assuming the girls left the courtroom, it does not appear whether they or either of them returned and behaved themselves. We find no prejudicial error in the manner in which the presiding judge dealt with the inexcusable conduct of the two girls.\nEach defendant assigns as error the court\u2019s failure to charge the jury \u201con a lesser crime\u201d and to submit guilt of \u201ca lesser offense\u201d as a permissible verdict.\nThe State\u2019s evidence tended to show that Dawson was guilty of rape as principal in the first degree. There Was no evidence from which the jury could find that Dawson committed any included offense of lesser degree. Smith and Roseboro, if guilty at all, were guilty as principals in the second degree of the crime committed by Dawson. There was no evidence that Smith or Roseboro was guilty as a principal in the second degree of any crime except that of rape. Since there was no evi-denee from which the jury could find that any defendant committed an included crime of lesser degree, defendants\u2019 assignments of error are without merit. For decisions supporting this conclusion, see the majority and dissenting opinions in State v. Bryant, 280 N.C. 551, 187 S.E. 2d 111 (1972).\nDefendants\u2019 other assignments of error have been fully considered. None discloses prejudicial error or requires discussion.\nThe evidence discloses that Viola Collins and Larry McMillan acted with courage and compassion when they came to Mrs. Hughes\u2019s rescue and prevented the further exploitation and sexual abuse of this helpless woman. Their conduct deserves appreciation and commendation. Apparently, there were others who \u201cpassed by on the other side.\u201d\nEach defendant has failed to show prejudicial error. Therefore, the verdicts and judgments will not be disturbed.\nNo error.", "type": "majority", "author": "BOBBITT, Chief Justice." }, { "text": "Justice Lake,\nconcurring in result. I concur in the result reached by the majority opinion and in all parts of that opinion except the approval of the trial court\u2019s denial of the request by counsel for the defendant that he, himself, be permitted to address questions to prospective jurors individually. In my opinion, this was error but, since the defendant did not exhaust his peremptory challenges, no prejudice to the defendant has been shown in this case.\nAs the majority opinion states, G.S. 9-15(a) provides: \u201cThe court, or any party to an action, civil or criminal, shall be allowed, in selecting the jury, to make inquiry as to the .fitness and competency of any person to serve as juror * * (Emphasis added.) In State v. Allred, 275 N.C. 554, 558, 169 S.E. 2d 833, this Court said:\n\u201cIn selecting the jury, the court, or any party to an action, civil or criminal, has the right to make inquiry as to the fitness and competency of any person to serve as a juror. G.S. 9-15(a). \u2018The voir dire examination of jurors is a right secured to the defendant by the statutes and has a definite double purpose: First, to ascertain whether there exist grounds for challenge for cause; and, second, to enable counsel to exercise intelligently tbe peremptory challenges allowed by law.\u2019 State v. Brooks, 57 Mont. 480, 188 P. 942.\u201d\nUnquestionably, the trial judge has wide discretion in the conduct of the interrogation of prospective jurors so as to avoid needless repetition and waste of time. The requirement, however, that counsel relay through the court all questions to prospective jurors does not have the virtue of saving time except insofar as it may discourage inquiry by making it a tedious and laborious process. The statute seems to contemplate that a party may propound his own questions directly to the jury, assuming the propriety of the question. Such has been the prevailing, if not the universally accepted, practice under the statute in the courts of this State. I see no virtue and some danger in departing from it.", "type": "concurrence", "author": "Justice Lake," } ], "attorneys": [ "Attorney General Morgan and Associate Attorney Lloyd for the State.", "Edward L. Williamson for defendant appellants." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CEPHUS JEROME DAWSON, NATHANIEL SMITH, and SAMUEL VEREANELL ROSEBORO\nNo. 36\n(Filed 31 July 1972)\n1. Criminal Law \u00a7 92\u2014 denial of motion for severance\nThe trial court did not err in the denial of defendants\u2019 motion for severance of their rape trial where defendants were jointly indicted for the rape of the same person, and the evidence upon which the State relied for conviction of each relates to a single transaction and involves all defendants, notwithstanding the State\u2019s evidence tended to show that only one defendant had sexual intercourse with the victim and the guilt of the other two defendants, if any, rested on evidence that they aided and abetted the first defendant in the commission of the crime..\n2. Jury \u00a7 5\u2014 jury selection \u2014 questioning conducted by court\nAlthough G.S. 9-15 (a) assures a defendant of the right to have due inquiry made as to the competency and fitness of any person to serve as a juror, the actual questioning of prospective jurors to elicit the pertinent information may be conducted either by the court or by counsel for the State and counsel for the defendant; the trial judge, in his discretion, may decide which course to pursue in a particular case.\n3. Rape \u00a7 5\u2014 principals in second degree \u2014 sufficiency of evidence\nThe State\u2019s evidence was sufficient to support a conviction of two defendants for the crime of rape as principals in the second degree where it tended to show that such defendants were standing by while a third defendant committed a rape, that they were undertaking to protect the third defendant from interference, that each of them obstructed the attempts of two witnesses to rescue the victim from the third defendant, and that the three defendants together fled from the scene while a witness was trying to call the police.\n4. Criminal Law \u00a7 99\u2014 ejectment of spectators\nThe trial court in a rape prosecution did not err in ejecting two black girls from the courtroom for disrupting the trial and in instructing them not to return to the courtroom until they decided to behave themselves.\n5. Rape \u00a7 6\u2014 failure to submit lesser degrees\nIn this rape prosecution, the trial court did not err in failing to submit lesser included offenses to the jury where the State\u2019s evidence tended to show that one defendant was guilty of rape as principal in the first degree and that the two remaining defendants were guilty as principals in the second degree of the crime committed by the first defendant, and there was no evidence from which the jury could find that any defendant committed an included crime of lesser degree.\nJustice Lake concurring in result.\nAppeal by defendants from Cooper, JAugust-September 1971 Criminal Session of Columbus.\nDefendants, Cephus Jerome Dawson (Dawson), Nathaniel Smith (Smith) and Samuel Vereanell Roseboro (Roseboro), were jointly indicted for the rape of one Edell Hughes on July 18, 1971.\nUpon arraignment on September 2, 1971, each defendant, through Edward L. Williamson, Esquire, his court-appointed counsel, pleaded not guilty. Defendants\u2019 motions for severance of the cases were denied and each defendant excepted. Thereupon, a jury was selected, sworn and empaneled. Evidence was offered by the State and in behalf of defendants. None of defendants testified.\nState\u2019s Evidence\nTestimony of Mrs. Edell Hughes\nMrs. Edell Hughes testified that she left home about 10:30 or 11:00 p.m. on the night of Saturday, July 17, 1971, and started walking toward Whiteville, N. C., where she was employed at the Whiteville Convalescent Center. Ordinarily, she went to work by car, a distance of a mile and a quarter; but her husband had left in their car and was not expected back that night. Mrs. Hughes had to be at work, at 6:00 a.m. Sunday morning, July 18th. Since she \u201cdidn\u2019t have any transportation to work the next morning,\u201d she decided to go to Whiteville and spend the night there with a friend or at the hotel.\nWhen attacked, Mrs. Hughes was in the middle of Pine Log Road, walking toward U. S. Highway 701 By-Pass. As she \u201cneared\u201d the Sherwood Drive-In and Sellers Service Station, three or four \u201ccolored\u201d surrounded and \u201cgrabbed hold of her\u201d and \u201cstarted taking her off of the street.\u201d When she begged them to leave her alone, they would not listen but told her they would kill her \u201cif she didn\u2019t stop that noise.\u201d They carried her \u201coff the street.\u201d Her slacks were torn off. She was hit on the side of her head. Somebody \u201cgot on top of her and proceeded to have intercourse.\u201d She did not recognize any of them.\nThe \u201cnext thing she knew,\u201d she heard someone say, \u201cGet off that white woman and leave her alone.\u201d A boy and a girl had come to her rescue. Both were colored. Mrs. Hughes did not know them and had never seen them. After the girl had helped Mrs. Hughes get her clothes on, the boy and girl took Mrs. Hughes to the police station.\nTestimony of Viola Collins\nViola Collins testified that she was at the Sherwood Drive-In between 12:30 and 1:00 a.m. on Sunday, July 18th. A \u201cboy named Dennis,\u201d with whom she had come to the Sherwood Drive-In, had gone \u201caround to the back\u201d and, upon his return, he \u201ctold her not to go around there because they had a white woman around there.\u201d Contrary to Dennis\u2019s advice, she \u201cwent on around behind the building, a distance of about the length of the courtroom to a point behind Pridgen\u2019s Refrigerator Service and Sellers Gas Station, a vacant lot.\u201d She then saw Dawson on top of the lady later identified as Mrs. Hughes. Four or five other people were there but she heard no one say anything to Dawson.\nDawson was \u201con top [of Mrs. Hughes] having intercourse with her.\u201d Smith and Roseboro were \u201cstanding there.\u201d Viola Collins told Dawson \u201cto get up\u201d and pulled \u201ca towel or something\u201d from Mrs. Hughes\u2019s face and got her by the arm. Mrs. Hughes, who seemed to have been \u201casleep or something,\u201d then \u201cwoke up,\u201d grabbed Viola Collins by the arm and asked for help. Viola Collins tried to pull Dawson off of Mrs. Hughes, but he would not get up and told her to wait until he had finished. She then told him: \u201c [Y] ou stay there until you finish and I am going to call a cop.\u201d While she was trying to get Dawson off of Mrs. Hughes, Smith, who \u201cwas standing a foot from [Dawson],\u201d told her to leave Dawson alone. Roseboro \u201ctold her to shut up and get away or they would get her down.\u201d\nAfter Dawson had refused to get off of Mrs. Hughes, Viola Collins then went to the Sherwood Drive-In for some change and then went to the phone booth. She \u201cdidn\u2019t know the number\u201d and could not get the operator. She then \u201cwent back around there\u201d and found that \u201call of them had gone.\u201d Mrs. Hughes\u2019s face was bruised on the side. She helped Mrs. Hughes get her clothes on and then she and Larry McMillan took Mrs. Hughes to the police station.\nOn cross-examination, Viola Collins testified that Mrs. Hughes said something about having had a quarrel with her husband; that Mrs. Hughes said that, after she had left home, some white boys picked her up and put her out down by Sellers Service Station; and that Mrs. Hughes had been drinking but she (Viola Collins) \u201cdidn\u2019t know about her being drunk.\u201d\nTestimony of Larry McMillan\nLarry McMillan testified that he knew Dawson, Smith and Roseboro and that he was at Sherwood Drive-In between 12:30 and 12:40 a.m. on July 18th. As a result of what \u201ca guy\u201d said, he \u201cwent around there\u201d and saw Dawson \u201chaving intercourse with the lady.\u201d Dawson had his pants down to his ankles. He heard Roseboro tell Dawson \u201cthat he was greedy\u201d and he heard Smith say something to Viola Collins but \u201cdidn\u2019t know what it was.\u201d He tried to make Dawson \u201cget up off the lady.\u201d Dawson swung his left arm back but did not hit McMillan. While Daw,son \u201cwas on her,\u201d Smith was standing about two feet from Dawson\u2019s head and Roseboro was standing about two feet to the right of Smith. Viola Collins ran to call the police. The three defendants left together, running. Viola Collins returned and \u201chelped the lady\u201d find her clothes. He and Viola Collins helped Mrs. Hughes put her clothes on and stood her up. Mrs. Hughes fell back when she attempted to stand alone and they helped her up again.\nLarry McMillan further testified that \u201che heard Mrs. Hughes say please get up, and Viola turned to Dawson and told him to get off.\u201d\nTestimony of Dr. F. M. Carroll\nF. M. Carroll, a medical doctor, testified that on July 18, 1971, about 1:25 a.m., he made an examination of Mrs. Hughes \u201cand in particular the pelvis examination.\u201d He observed that there was a bruise and abrasion on the left side of her face and left shoulder and some bruises on her back, mostly on the left side. She was \u201cdirty and a lot of dirt and grass were on her clothes.\u201d \u201c [H] er back and external female parts were dirty with grass and dirt about this area.\u201d \u201c[S]he was undergoing a menstrual period.\u201d A microscopic examination of secretion taken from her vagina disclosed that sperm were present, and in his opinion she had had intercourse with someone within three or four hours. On the occasion of his examination, \u201cintoxication was not noticeable.\u201d\nTestimony of George Dudley\nGeorge Dudley testified that he is a Sergeant in the White-ville Police Department and that he investigated the alleged rape of Edell Hughes on July 18, 1971. Each of the defendants made a statement to him. The court sustained defendants\u2019 objections to statements, if any, made by them to Sgt. Dudley.\nDefendants\u2019 Evidence Testimony of Tony H. Shipman\nTony H. Shipman testified that he is 14 years of age. About 11:30 p.m., when walking in \u201cthe most direct route\u201d from the bowling alley on U. S. 701 By-Pass to the Sherwood Drive-In he saw the lady later identified as Mrs. Hughes. She was lying on the grass, with her head resting on a suitcase, \u201cbetween Pridgens and Sellers,\u201d about 50 yards off the paved sidewalk that ran along the edge of Powell Boulevard. She \u201chad on pants, blouse, and shoes.\u201d He \u201cran to the Sherwood and told someone she was there.\u201d He \u201cwent back there with someone\u201d and \u201cthe lady was still there, lying in about the same position.\u201d She was \u201cnot awake,\u201d and made no response when' he tried to talk to her. She \u201cdid not ever say anything in his presence and she did not get up.\u201d Defendant Smith was one of \u201ca lot of people\u201d who went back there with him. Shipman did not see Roseboro or Dawson. He left for his home in a friend\u2019s car and he did not know whether defendant Smith was still there when he left to go home. Shipman did not attempt to help the lady, \u201cjust glanced at her and left.\u201d\nTestimony of Sylvester Baldwin\nSylvester Baldwin testified that he operates the Sherwood Drive-In. He was at his place of business from about 7:00 p.m. on Saturday, July 17th, until about 2:00 a.m. on Sunday, July 18th, \u201cwaiting on customers.\u201d He went outside the building several times that night. There were \u201cseveral people,\u201d \u201cquite a crowd,\u201d out in front. He did not recall having seen a white woman on Pine Log Road in front of his place of business at any time that night. He did not learn of the alleged offense until about 2:00 a.m. \u201c[H]e did not go back there behind the Drive-In nor did anyone come in and tell him about what was going on.\u201d He had known defendant Dawson well since he was about nine years old but did not know the other two defendants.\nTestimony of Bobby Randall\nBobby Randall testified that he lives in Whiteville, is 28 years of age, and has known the defendants a long time. On the night of July 17, 1971, he \u201cwas down [at Sherwood Drive-In] from about 9:00 to 11:80, just sitting around drinking beer and talking.\u201d He left \u201cabout 11:30\u201d but \u201cwent back to Sherwood about 12:00 or 12:15.\u201d \u201c[H]e did not recall seeing a white woman walking down the road with a suitcase.\u201d \u201c[H]e was sitting out in front of Sherwood before he left at about 11:30 and quite a few people were sitting in cars.\u201d \u201c[H]e was in front of Sherwood when Viola Collins came around the building.\u201d She asked him to take her and her father across town, and he agreed. \u201c[W]hen he started out, someone from behind the building came and told us that they got a woman back there.\u201d \u201c [H] e also went back there, in the area where the activity was taking place and there were quite a few back there when he got there,\u201d \u201cbetween seven and ten people.\u201d \u201c [H] e did not know about what happened back there in the lot and did not know whether or not Mrs. Hughes walked down the road with a suitcase.\u201d\nCharacter Witnesses\nAnnie P. Shipman, age 72, and Mrs. J. E. Baldwin, age 70, and Mamie Maultsby, age 81, testified with reference to the general reputation of Roseboro. John Bennett testified with reference to the general reputation of Dawson. Freddie Barkley testified with reference to the general reputation of Smith.\n(Note: When referring to events which occurred on Saturday, which was July 17, 1971, certain witnesses erroneously referred to such events as having occurred on July 18,1971, which was Sunday.)\nAs to each of the three defendants, the jury returned a verdict of guilty of rape with a recommendation of life imprisonment. Thereupon the court, in separate judgments, sentenced each defendant to life imprisonment.\nEach defendant excepted and appealed.\nAn order entered by the trial judge extended the time for docketing the record on appeal in the Appellate Division.\nAttorney General Morgan and Associate Attorney Lloyd for the State.\nEdward L. Williamson for defendant appellants." }, "file_name": "0645-01", "first_page_order": 673, "last_page_order": 686 }