{ "id": 8573508, "name": "STATE OF NORTH CAROLINA v. GENE McGAHA", "name_abbreviation": "State v. McGaha", "decision_date": "1982-10-05", "docket_number": "No. 109PA82", "first_page": "699", "last_page": "706", "citations": [ { "type": "official", "cite": "306 N.C. 699" } ], "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": "94 S.E. 2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "570" } ], "opinion_index": 0 }, { "cite": "244 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219607 ], "year": 1956, "pin_cites": [ { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0590-01" ] }, { "cite": "167 S.E. 2d 775", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "777" } ], "opinion_index": 0 }, { "cite": "275 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558809 ], "year": 1969, "pin_cites": [ { "page": "381-82" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0378-01" ] }, { "cite": "231 S.E. 2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "265" } ], "opinion_index": 0 }, { "cite": "291 N.C. 586", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558813 ], "year": 1977, "pin_cites": [ { "page": "589" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0586-01" ] }, { "cite": "161 S.E. 2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "18" } ], "opinion_index": 0 }, { "cite": "273 N.C. 641", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575927 ], "year": 1968, "pin_cites": [ { "page": "645" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0641-01" ] }, { "cite": "191 S.E. 2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "670" } ], "opinion_index": 0 }, { "cite": "282 N.C. 107", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562829 ], "year": 1972, "pin_cites": [ { "page": "117" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0107-01" ] }, { "cite": "158 S.E. 2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "597" } ], "opinion_index": 0 }, { "cite": "272 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572856 ], "year": 1968, "pin_cites": [ { "page": "314" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0312-01" ] }, { "cite": "289 S.E. 2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566603, 8566572, 8566639, 8566677, 8566710 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0153-02", "/nc/305/0153-01", "/nc/305/0153-03", "/nc/305/0153-04", "/nc/305/0153-05" ] }, { "cite": "283 S.E. 2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "54 N.C. App. 386", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522638 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/54/0386-01" ] }, { "cite": "375 N.E. 2d 781", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "54 Ohio St. 2d 190", "category": "reporters:state", "reporter": "Ohio St. 2d", "case_ids": [ 6710900 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ohio-st-2d/54/0190-01" ] }, { "cite": "250 Iowa 892", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 4444848 ], "weight": 2, "year": 1959, "opinion_index": 0, "case_paths": [ "/iowa/250/0892-01" ] }, { "cite": "385 So. 2d 761", "category": "reporters:state_regional", "reporter": "So. 2d", "year": 1980, "opinion_index": 0 }, { "cite": "378 So. 2d 4", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9551678 ], "opinion_index": 0, "case_paths": [ "/so2d/378/0004-01" ] }, { "cite": "99 P. 333", "category": "reporters:state_regional", "reporter": "P.", "year": 1909, "opinion_index": 0 }, { "cite": "44 Colo. 600", "category": "reporters:state", "reporter": "Colo.", "case_ids": [ 5273959 ], "year": 1909, "opinion_index": 0, "case_paths": [ "/colo/44/0600-01" ] }, { "cite": "87 S.E. 2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1955, "pin_cites": [ { "page": "83" }, { "page": "17" } ], "opinion_index": 0 }, { "cite": "242 N.C. 78", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609197 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/nc/242/0078-01" ] }, { "cite": "122 S.E. 2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 1 }, { "cite": "256 N.C. 27", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570691 ], "year": 1961, "opinion_index": 1, "case_paths": [ "/nc/256/0027-01" ] }, { "cite": "139 S.E. 2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 1 }, { "cite": "263 N.C. 536", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571870 ], "year": 1965, "opinion_index": 1, "case_paths": [ "/nc/263/0536-01" ] }, { "cite": "32 S.E. 2d 314", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "opinion_index": 1 }, { "cite": "224 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614116 ], "year": 1944, "opinion_index": 1, "case_paths": [ "/nc/224/0760-01" ] }, { "cite": "162 S.E. 2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 1 }, { "cite": "274 N.C. 256", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559737 ], "year": 1968, "opinion_index": 1, "case_paths": [ "/nc/274/0256-01" ] }, { "cite": "173 S.E. 2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "773-74" } ], "opinion_index": 1 }, { "cite": "276 N.C. 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562463 ], "year": 1970, "pin_cites": [ { "page": "547" } ], "opinion_index": 1, "case_paths": [ "/nc/276/0535-01" ] }, { "cite": "213 S.E. 2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "295", "parenthetical": "citations omitted" } ], "opinion_index": 1 }, { "cite": "287 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561054 ], "year": 1975, "opinion_index": 1, "case_paths": [ "/nc/287/0076-01" ] }, { "cite": "14 P. 2d 945", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1932, "opinion_index": 1 }, { "cite": "159 Okla. 191", "category": "reporters:state", "reporter": "Okla.", "case_ids": [ 415518 ], "year": 1932, "opinion_index": 1, "case_paths": [ "/okla/159/0191-01" ] }, { "cite": "257 N.Y.S. 2d 288", "category": "reporters:state", "reporter": "N.Y.S.2d", "weight": 2, "year": 1965, "opinion_index": 1 }, { "cite": "22 A.D. 2d 497", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 5541747 ], "weight": 2, "year": 1965, "opinion_index": 1, "case_paths": [ "/ad2d/22/0497-01" ] }, { "cite": "158 S.E. 2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 1 }, { "cite": "272 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572856 ], "year": 1968, "opinion_index": 1, "case_paths": [ "/nc/272/0312-01" ] }, { "cite": "289 S.E. 2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 1 }, { "cite": "305 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566603, 8566572, 8566639, 8566677, 8566710 ], "year": 1982, "opinion_index": 1, "case_paths": [ "/nc/305/0153-02", "/nc/305/0153-01", "/nc/305/0153-03", "/nc/305/0153-04", "/nc/305/0153-05" ] }, { "cite": "283 S.E. 2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", 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App. 386", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522638 ], "year": 1981, "opinion_index": 1, "case_paths": [ "/nc-app/54/0386-01" ] }, { "cite": "87 S.E. 2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "opinion_index": 1 }, { "cite": "242 N.C. 78", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609197 ], "year": 1955, "opinion_index": 1, "case_paths": [ "/nc/242/0078-01" ] } ], "analysis": { "cardinality": 773, "char_count": 15595, "ocr_confidence": 0.805, "pagerank": { "raw": 3.7209779354403035e-07, "percentile": 0.8938552015966954 }, "sha256": "683b0337c18291d845b2477ff90d0536d6238c5a01d0d80e3565defb6afb1485", "simhash": "1:9b17e14310ab0afc", "word_count": 2721 }, "last_updated": "2023-07-14T20:30:26.892112+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justices Exum and Mitchell join in this dissent." ], "parties": [ "STATE OF NORTH CAROLINA v. GENE McGAHA" ], "opinions": [ { "text": "CARLTON, Justice.\nGene McGaha, a forty-year-old college graduate, was indicted for committing a sex offense under G.S. 14-27.4(a)(l) (1981). The statute states that \u201c[a] person is guilty of a sexual offense in the first degree if the person engages in a sexual act: (1) [w]ith a victim who is a child of the age of 12 years or less . . . .\u201d (Emphasis added.) The indictment alleged that the victim was \u201ca child 12 years 8 months old and thus of the age of 12 years or less . . . .\u201d Before tendering his plea of guilty to this charge and five other sex crimes, McGaha told the court: \u201cI cannot state that I am guilty in case number 2594 [G.S. 14-27.4(a)(l) offense] because I was drunk and cannot remember, but I feel that it is in my best interest to plead guilty based on evidence I have heard.\u201d McGaha then was sentenced to life imprisonment for the first-degree sex offense, the sentence to run concurrently with other sentences imposed.\nDefendant contends that he cannot be lawfully indicted under G.S. 14-27.4(a)(l) for engaging in a sexual act with a child twelve years and eight months old because the age requirement of the statute is not satisfied; the victim is not of the age of \u201c12 years or less.\u201d In essence, defendant argues that once a child passes his twelfth birthday he is over twelve years of age; he is no longer \u201c12 years or less.\u201d We must agree.\nA similar question was presented to this Court over twenty-seven years ago; we find the decision in that case controlling here. In Green v. Patriotic Order Sons of America, Inc., 242 N.C. 78, 87 S.E. 2d 14 (1955), a widow sought to recover from a funeral benefit association benefits accruing upon her husband\u2019s death. The widow was entitled to the funeral benefits only if her husband was not \u201cover fifty years\u201d when he enrolled in the association. The husband\u2019s age at enrollment was fifty years and four months. This Court held that after the husband reached his fiftieth birthday he was over fifty years of age. Id. at 83, 87 S.E. 2d at 17. The Court stated, \u201cwhen a person reaches his fiftieth birthday he would have lived fifty calendar years, of twelve calendar months each. Hence after his fiftieth birthday he would be over fifty years of age.\u201d Id.\nSo it is here. When defendant\u2019s victim reached his twelfth birthday, he had lived twelve calendar years of twelve months each. Therefore, after his twelfth birthday, he was something more than twelve. Clearly, under the Green rationale, he was not \u201c12 years or less.\u201d Accord Gibson v. People, 44 Colo. 600, 99 P. 333 (1909); State v. Carroll, 378 So. 2d 4 (Fla. Dist. Ct. App.), cert. denied, 385 So. 2d 761 (1980); Knott v. Rawlings, 250 Iowa 892, 96 N.W. 2d 900 (1959); State v. Maxson, 54 Ohio St. 2d 190, 375 N.E. 2d 781 (1978).\nThe State relies in part on a recent decision of the Court of Appeals construing similar language in our first-degree rape statute, G.S. 14-27.2(a)(1) (1981), State v. Ashley, 54 N.C. App. 386, 283 S.E. 2d 805(1981), cert. denied, 305 N.C. 153, 289 S.E. 2d 381 (1982). There is language in Ashley in conflict with our holding here and, to that extent, Ashley shall not be considered authoritative.\nThe State also contends that \u201ccommon practice\u201d supports its position. That is, most people will state their age by giving the number of birthdays celebrated. Hence, one is still twelve until the thirteenth birthday. We agree that most adults state their ages in this manner. This \u201ccommon practice,\u201d however, is based on the fiction that we grow older only at yearly intervals. The truth, of course, is that we grow older a day (or less) at a time. After a child celebrates his twelfth birthday, he is no longer \u201c12 years or less,\u201d he is 12 and more.\nIn the case at bar, therefore, defendant McGaha was unlawfully indicted for violating G.S. 14-27.4(a)(l) because an essential element of the offense, the age requirement of the victim, had not been met.\nOur decision today is grounded on precedent and the rule that criminal statutes are to be construed strictly against the state and liberally in favor of the defendant. See State v. Pinyatello, 272 N.C. 312, 314, 158 S.E. 2d 596, 597 (1968). If the legislature intends to extend the protection of G.S. 14-27.4(a)(l) to children who have passed their twelfth birthday but have not yet reached their thirteenth birthday, as the State argues, then the language of the statute must explicitly state that intention. This Court is not at liberty to amend the statute. The General Assembly previously has indicated unambiguously the class of people included in the purview of its statutes. For example, G.S. 7A-524 (1981) provides, \u201c[w]hen the court obtains jurisdiction over a juvenile, jurisdiction shall continue until terminated by order of the court or until he reaches his eighteenth birthday.\u201d (Emphasis added.) The legislature\u2019s use of the juvenile\u2019s \u201cbirthday\u201d provides an exact point of reference from which to determine the class of people to whom the statute applies. Our legislature may wish to amend several criminal statutes which use language similar to that which we have interpreted here and substitute the precise language employed in G.S. 7A-524.\nIn his brief before this Court, defendant requests that we arrest judgment in this case. A motion in arrest of judgment is directed to some fatal defect appearing on the face of the record. State v. Davis, 282 N.C. 107, 117, 191 S.E. 2d 664, 670 (1972). It has been held that such a motion may be made for the first time on appeal in the Supreme Court. State v. Sellers, 273 N.C. 641, 645, 161 S.E. 2d 15, 18 (1968).\nA motion in arrest of judgment is proper when it is apparent that no judgment against the defendant could be lawfully entered because of some fatal error appearing in (1) the organization of the court, (2) the charge made against the defendant (the information, warrant or indictment), (3) the arraignment and plea, (4) the verdict, and (5) the judgment. (Citations omitted.)\nState v. Perry, 291 N.C. 586, 589, 231 S.E. 2d 262, 265 (1977).\nHere, the fatal defect appearing on the face of the record is in the second category noted above. Judgment must be arrested when the indictment fails to charge a criminal offense or fails to charge an essential element of the offense. State v. Benton, 275 N.C. 378, 381-82, 167 S.E. 2d 775, 777 (1969); State v. Coppedge, 244 N.C. 590, 591, 94 S.E. 2d 569, 570 (1956).\nFor the reasons stated, we must arrest the judgment.\nJudgment arrested.", "type": "majority", "author": "CARLTON, Justice." }, { "text": "Justice Martin\ndissenting.\nI respectfully dissent. The majority relies upon Green v. Patriotic Order Sons of America, Inc., 242 N.C. 78, 87 S.E. 2d 14 (1955), which I do not find persuasive. Green involved the interpretation of the bylaws of a funeral association. The phrase in question in Green was \u201cnot less than sixteen years of age nor over fifty years.\u201d The portion of the statute we are faced with is \u201ca child of the age of 12 years or less.\u201d An applicant in Green could not qualify for insurance if \u201cover fifty years,\u201d that is, after his fiftieth birthday. In the statute before us, children are protected during the period that they are \u201cof the age of 12 years.\u201d A child is \u201cof the age of 12 years\u201d during the period between his twelfth birthday and thirteenth birthday. See People ex rel. Makin v. Wilkins, 22 A.D. 2d 497, 257 N.Y.S. 2d 288 (1965). Other courts faced with the issue in Green have resolved it contrary to Green. In Wilson v. Mid-Continental Life Ins. Co., 159 Okla. 191, 14 P. 2d 945 (1932), the court held that \u201cover the age of 65 years\u201d meant until the sixty-sixth birthday. Green, although it may be correct as applied to its fact situation, is not dispositive of the issue before us. It is concerned with determining the contractual intent of private parties in the light of the specific setting and the interpretive objective therein sought.\nOn the other hand, we are concerned with a question of public policy to be reconciled by statutory construction. We must seek the intent of the legislature. The intent of the legislature controls the interpretation of statutes. State v. Hart, 287 N.C. 76, 213 S.E. 2d 291 (1975).\n\u201cOf course criminal statutes must be strictly construed. [Citations omitted.] But this does not mean that a criminal statute should be construed stintingly or narrowly. It means that the scope of a penal statute may not be extended by implication beyond the meaning of its language so as to include offenses not clearly described. [Citations omitted.] Even so, an interpretation which leads to a strained construction or to a ridiculous result is not required and will not be adopted. State v. Pinyatello, 272 N.C. 312, 158 S.E. 2d 596 [1968]. \u2018While a criminal statute must be strictly construed, the courts must nevertheless construe it with regard to the evil which it is intended to suppress. And the rule that statutes will be construed to effectuate the legislative intent applies also to criminal statutes.\u2019 . . .\u201d\nId. at 80-81, 213 S.E. 2d at 295 (citations omitted) (quoting State v. Spencer, 276 N.C. 535, 547, 173 S.E. 2d 765, 773-74 (1970)).\nIn construing amended statutes it is presumed that the legislature intended either to change the substance of the original act or to clarify the meaning of it. Childers v. Parker\u2019s, Inc., 274 N.C. 256, 162 S.E. 2d 481 (1968).\nThe rape and sex offense laws were recodified in 1979 when our legislature adopted article 7A of chapter 14 of the General Statutes of North Carolina. The 1979 act defined new crimes of first and second degree sexual offenses and also rewrote the rape statute. In so doing, the legislature provided that the language with respect to the age of the victim in first degree sexual offense, N.C.G.S. 14-27.4(a)(l), and first degree rape, N.C.G.S. 14-27.2(a)(l), would be identical. The present language of both sections was established by the 1981 amendment effective 1 July 1981. The new rape section replaces former N.C.G.S. 14-21 (Supp. 1975). Therefore, we may look to the changes in the rape statute in determining the intention of the legislature in adopting the age provision common to it and N.C.G.S. 14-27.4(a)(l).\nN.C.G.S. 14-21, with respect to the age of a child victim, read \u201cany female child under the age of twelve years.\u201d (Emphasis added.) Under this statute, if the victim had reached her twelfth birthday, she was not protected by the statute. Cf. State v. Wade, 224 N.C. 760, 32 S.E. 2d 314 (1944). N.C.G.S. 14-27.2(a)(1) applies if the victim \u201cis a child of the age of 12 years or less.\u201d\nWhy did the legislature change the wording of the statute in 1979 and 1981? Any material change in the language of the original act indicates a change in legal rights. The logical inference is that the legislature wanted to extend the protection of the statute to children who had not attained their thirteenth birthdays. Otherwise, there is no reasonable basis for the deletion of \u201cunder\u201d and the use of the phrase \u201cof the age of 12 years.\u201d This phrase has a particular meaning: it means \u201cwhile a child is 12 years old,\u201d or \u201cduring the period that a child is 12 years of age.\u201d If the legislature intended the protection of the statute to terminate at the instant of a child\u2019s twelfth birthday, it would have used language such as \u201ca victim who has attained his 12th birthday or less.\u201d The words \u201cof the age of 12 years\u201d denote a continuing condition until the child\u2019s thirteenth birthday. The use of the verb \u201cis\u201d with the phrase \u201cof the age,\u201d rather than \u201chas attained\u201d or similar language, denotes a continuing or existing condition. The phrase \u201cor less\u201d immediately following \u201cof the age of 12 years\u201d indicates that the legislature intended to include the entire period that a child was twelve years of age and also the period before the child becomes twelve years of age. The deletion of the word \u201cunder\u201d clearly manifests the intent to extend the protection of the statute. State v. Ashley, 54 N.C. App. 386, 283 S.E. 2d 805 (1981), cert. denied, 305 N.C. 153, 289 S.E. 2d 381 (1982).\nIn Wilkins, supra, 22 A.D. 2d 497, 257 N.Y.S. 2d 288 (1965), the New York court was faced with a similar question on facts close to those in the case before us. There, the court interpreted the amendment of a sex offense statute. The original act made it a felony to carnally abuse a child \u201cten years or under.\u201d The legislature amended the companion statute to make it a misdemeanor to carnally abuse a child \u201cover the age of ten years.\u201d The court held that the felony act applied where the victim was ten years and three months of age. By the amendment, the legislature intended to change the legal rights affected by the act. The court stated that a child \u201cof the age of 10 years\u201d was one who has reached the tenth birthday but has not reached the eleventh birthday. By so doing, the court expanded the protection of the felony statute to children in this age bracket. The reasoning in Wilkins is equally applicable to the case before us.\nMoreover, one of the primary purposes of a criminal statute is to put the public on notice as to what they can or cannot lawfully do. The legislature must inform the citizen with reasonable precision what acts it intends to prohibit so that he may have a certain understandable rule of conduct and know what acts it is his duty to avoid. State v. Lowry and State v. Mallory, 263 N.C. 536, 139 S.E. 2d 870 (1965). The aim of the criminal statute is to notify a person of ordinary understanding and intelligence of the conduct that is prohibited. State v. Hales, 256 N.C. 27, 122 S.E. 2d 768 (1961). The words \u201cof the age of 12 years\u201d mean to the average person of ordinary understanding and intelligence that the victim has passed her twelfth birthday but has not reached her thirteenth birthday. The legislature intends that its statutes be understandable by the general public as well as English scholars.\nIn recodifying former N.C.G.S. 14-21 and in prohibiting a broader range of sexual offenses, the legislature intended to expand the protection of children from such assaults. I find the indictment to be lawful and proper. Defendant had a fair trial, free of prejudicial error.\nJustices Exum and Mitchell join in this dissent.", "type": "dissent", "author": "Justice Martin" } ], "attorneys": [ "Attorney General Rufus L. Edmisten, by Assistant Attorney General W. Dale Talbert, for the State.", "Haywood, Denny & Miller, by Charles H. Hob good and George W. Miller, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GENE McGAHA\nNo. 109PA82\n(Filed 5 October 1982)\nRape and Allied Offenses \u00a7 9\u2014 engaging in a sexual act with victim \u201cof the age of twelve years or less\u201d \u2014 does not cover engaging in sexual act with a victim twelve years and eight months old\nA judgment finding defendant guilty of committing a first-degree sexual offense under G.S. 14-27.4(a)(l) for engaging in a sexual act with a victim who was twelve years and eight months old must be arrested where the statute forbids such conduct with children \u201cof the age of twelve years or less.\u201d After a child celebrates his twelfth birthday, he is no longer \u201ctwelve years or less,\u201d he is twelve and more.\nJustice Martin dissenting.\nJustices Exum and Mitchell join in this dissent.\nWE granted defendant\u2019s petition for certiorari to review the judgment of Britt, Judge, entered at the 10 August 1981 Session of Superior Court, SCOTLAND County.\nThe sole question presented is whether defendant was lawfully indicted for committing a first-degree sexual offense under G.S. 14-27.4(a)(l) (1981) for engaging in a sexual act with a victim who was twelve years and eight months old, the statute forbidding such conduct with children \u201cof the age of 12 years or less.\u201d\nAttorney General Rufus L. Edmisten, by Assistant Attorney General W. Dale Talbert, for the State.\nHaywood, Denny & Miller, by Charles H. Hob good and George W. Miller, Jr., for defendant-appellant." }, "file_name": "0699-01", "first_page_order": 727, "last_page_order": 734 }