#### STATE vs. JOHN BROWN.

Where a Judge in charging a jury expressed his strong indignation th'at' persons, in hearing of the alleged violence, did not rush to the rescue of the person upon whom it was committed, and also expressed his eagerness and desire to punish them for their cowardice; it was held that such expressions were a clear intimation of an opinion upon the facts, and a violation of the statute.

This was an indictment for rape, tried before Clárice, J., at Spring Term, 1872, of Robeson Superior Court.

The prisoner, John Brown, was charged with rape, upon the *436person of one Wiriuy McDaniel; and one A. C. Moody was likewise indicted as aiding and abetting Brown was tried alone, the other party having escaped. The principal witness on the part of the State was Winriy McDaniel, who swore that John Brown and Moody came to her house in May. Brown was a colored man and called himself Lowery, and said he was a brother of Ilenry Berry Lowery. He told witness to get him something to eat. ¡¿he said she liad nothing, did not want to get it; he said, kill a chicken, which was done. While the chicken was cooking, he said he was going out and would call her and she must come., He put his pistol by his plate while lie was eating; after ho had finished eating he gathered a ipail of water.and put out the lire. lie said Henry Berry said it ;iiilist he put out. .lie then went into the other end of the •.house and called her-daughter Mary. Witness went, he made dier go. lie wanted f.o-ktiow why she had been shunning him. He said, it witness did not.give mp to him he would make her feel what, was in his pistol, and -would have Ilenry Berry and his gang upon her. Witness further'-stated, that the prisoner had connection with her, and agaia-st her will. Upon cross-examination, she stated that this occurred about tour miles .from Lumheiton, on the road to Moss Neck; that when the iparties came she was in bed, and there was no -light-in the thouse, and that, it was a dark night. They cirrsed and-swore -around the house, for some time before theyr came in. Moody -.gave his name, and said to the other person with him, “Come dn Mr. Lowery.” The house was a double pen log house, with a passage between tire rooms. Prisoner called Mary, and she «went to save Mary. He was standing up when she went in. He said if she did not submit to him he would have Henry Berry’s gang upon her. She was very much frightened, and there vwas some souffle. He had a pistol,.and she feared those whom she .-supposed were around the house; witness said Brown was black hand Moody was white, and she knew it was Brown. The ¡parties were drinking and remained until daylight. Witness *437stated that Turney Davis and his tWo brothers Were around the house at the time the violence was committed; but that neither she nor the accused knew it-. Site kept the fact a secret, for some time, from fear.

Mary McDaniel was examined as a witness, and her testiiiiohjf in every particular coroborated her mothers.

Turney Davis was examined. He said that the prosecutor' Winny McDaniel, Was his aunt. That when he heard that the Lowery gang Was there, he and his two bi-others armed theta1 selves and went to the place described by first Witritessj they were in the yard and near the house, heard the parties talking and heard Brown say he had plenty of friends at his back, Knew the parties, saw prisoner with his arms around his aunt Winny ; she was begging him to let her alone. The rail road depot was about half a mile distant. Witness and his brother did not interfere, or make' any effort to assist his aunt, or to arrest the parties. They remained !in the yard, and near the house, until break of day.

Prisoner examined several witnesses. The tendency of this evidence was to show that the principal witness had made contradictory statements in regard to the transaction, and to impeach Jier character The prisoner’s counsel asked the Court to charge that, if they believed Davis, the prisoner was not guilty. His Honor refused, and prisoner excepted.

The Solicitor, in his conclusion, pointed to the prisoner and said, “Gentlemen oí the jury, I do not ask a verdict in behalf of a poor old woman, but demand, in the name of justice, that this infamous villian. be hung, and I will be glad to see him hung.” Prisoner excepted. The Judge delivered a written charge to the jury, which is sent up as a part of the record in the case, and is as follows :

Gentlemen oe the Jury: — The investigation of guilt and the punishment of crime are a painful, but a highly important duty. God has so ordered it, and we worms of the dust must recognize what He has ordered. If he and my country say to *438me, hang a man, I will do it, however painful it may be. But, gentlemen, your duty is notas painful as mine. You sentence no man. You have only to determine an issue of fact. You have under your oaths, before God and your country to say, upon the evidence, whether the prisoner at the bar is guilty of the crime of which he is accused. Before God and His holy angels, I charge you, that you shall not try him as a colored man — a negro; but as a man accused of crime, without knowing his color or condition. A jury has no right to have “ bowels of compassion.” In the Court House we do not invoke a God of mercy, but a God of justice and of vengeance. If John Brown is guilty, and you say he is, I will condemn him t© be hanged as guilty; and I will add, if my duty so declared, if my duty to our mother, North Carolina, required, I would hang him, as many, now in the sound of (my.) voice, have seen me in time past, by orders from the powers above 'me representing North Carolina, have a man shot. This is painful, but it is necessary. It must (be) done fairly and manfully, or the law must perish. If this man is guilty and he is allowed to escape, then the chastity of every woman in Robeson county is put at the mercy of every villain that may attempt it. Especially is this the case, if the men of her family should bo as cowardly as the wretches, who knowing that their kinswoman-in the hands of ruffians, and having arms in their hands, to the disgrace of manhood failed to rush toiler rescue. May the God of the fatherless, the protector of the widow and the orphan, consume them with the lightnings of Ilis wrath-! I would sentence them, more cheerfully than any criminal •ever convicted before me.

Then you have to determine a mere matter of fact, as that two times two are four, irrespective of consequences; just as you would look at the clock to ascertain the hour, whether its chimes should summon an eager bridegroom, to clasp in his arms the long sought object of tenderest affection ; or cause the dungeon doors to unbar for a trembling criminal, to go *439forth to meet his doom. Crime must be punished, or law will eease to be respected ; aud, oh my countrymen ! I beg you to remember, that if crime is not punished by law, that men will eease to look to the law tor protection, and will take.justiee and vengeance into their own hands. If my wife, my son, or-my daughter is injured and the law does not protect them, I will avenge them myself, and you will readily see what such - a course will bring about in the land. ' By the ordinance of God, Himself, the higli-priest was made the avenger of blood in Israel. Then let us decide this matter firmly, and with determination, not swayed or influenced by our feelings, but calmly, justly, fairly, without passion or prejudice. It has been contended in an argument of some length, that rape cannot be committed without the consent of the woman ; that it is impossible to be accomplished violently, without such injury to the person as would leave marks to be exhibited. You can form as correct an estimate of this .matter as I. You can determine what chance a feeble woman would have, in the grasp of a strong, vigorous man, excited by.passion. Asan evidence that there'-was consent in this case, it is said there was no out-cry for assistance and-rescue. How is this? Sacred history informs ns that 'the princess Tamar was ravished by Ammon in David’s royal palace; and profane history records the fact that the lustful Tarquín accomplished his fell purpose on the chaste Lucretia in her own house, where she was undoubtedly surrounded by her family; aud in each ease the crime was not known until the victim revealed it. But the argument has but little bearing on the case before us, for Mrs. McDauiel tells us, that she neither resisted or cried out; that she was threatened with death it .she resisted, and was ordered “ not to speak above her breath ;” that she submitted from terror of the man, armed with'the pistol, aud from fear of those whom she had been iinformed were around the house, the terrible Lowery gang, who she believed were within call, and who would destroy her and ker family. Whether she has spoken the truth is tor you to *440determine. Why should she speak falsely? What inducement can she have? What object or end has she to obtain t It cannot be malice, for she tell" you she never saw the prisoner before the memorable night, when.she alleges he came to her house.

It is the theory of the defence that the defendant cannot be found guilty, because Mrs. McDaniel went to-him willingly, in piace ot her daughter, on the principle “ nulla injuria volenti Jit.” Is this so? Was her conduct that of a wanton, so carried away hv the pruriency oí lustful desires, that she sought its gratification in the presence of her family, and with their knowledge, and with a negro too? Or was this an act of sublime heroism and noble self-sacrifice ?' Does it bring to your minds a picture of beastly sensuality ; or that engraving which we often see, of a mother on the deck of a sinking ship, who, while the waves closed over her, holds her babe at arm’s length above her head, that its little life, may be prolonged a few moments beyond her own ? Do you see the leering har. lot, or a mother willing to sacrifice herself to the loathsome embrace of a fiend, maddened with lust and liquor, to save her pure and innocent daughter? And does^ot this act of parental affection remind you of the ¿.nguished cry of Israel’s King lamenting his beloved but rebellions son, ÍC O my son Absalom ; my son, my son Absalom ! would God I bad died for thee, 0, Absalom, my son 1” Did she act willingly ? It she did, then there was no rape, and (lie prisoner is not guilty. But if she acted under duress, if she submitted from his compulsion, he is guilty. The Italian bandits, who compelled a female captive to yield to their lusts, by threatening to kill her husband if she did not submit, as truly ravished her, as if they had used the extremeet force. Rape is “ the carnal knowledge of a woman, forcibly and against her will.” 4 Black, Com. 21(>.

Having stated these principles of lawj and briefly discussed some portions of the testimony, it only remains for me to inform you, that it is-exclusively the province and «■'ffice of the *441jury to attach such weight and importance, and give such credence to the evidence as they, in the exercise ot a sound discretion, may see tit. The Conrt-would desire to instruct you, to place yon in a position to see the matter clear and nnderstandingly for yourselves, but not to dictate to you how you shall find. It is your duty, to weigh and consider every, fact and circumstance, as well those that make for the prisoner, as those which tell against him. You will consider the character ol the witnesses, their intelligence, the manner in which they gave in their testimony, their opportunities for knowing-whereof they testified, the influences, biases, prejudices, passions, which may induce them to testily talsely. Yon will endeavor to reconcile discrepancies and conflicting statements, if possible, remembering that substantial agreement outweighs etroumstantial variations, or you may ree-eive or reject the whole, or any part of the witnesses’ statements. You must weigh witness with witness, compare tact with fact, consider circumstance with reference to circumstance; in a word, you will bring to bear all the tests of truth which your observation, experience or reflection may suggest. You will distinctly bear in mind that the cone'usion of'guilt must exclude every reasonable supposition of innocence. If you entertain a reasonable doubt of the guilt of the prisoner, yon will return a verdict of not guilty; but if you are satisfied that he undoubtedly committed the act, as charged in the indictment, then you will return a verdict of guilty.

Sincerely hoping that you may arrive at a sound and truthful conclusion; one which no lapse of time, no subsequent reflection will cause you to wish it had been otherwise, I leave the cause in your hands,- remarking to each, “ Let all the ends thou aim’st at be thy Country’s, thy God’s and Truth’s.’’

I certify that the foregoing statement of evidence, and the Judge’s charge, in the case of the State v. John Brown, are correct.

WM. J. CLARKE, J. S. ©.

*442The jury returned a verdict of guilty. Motion v-for a venire de novo. Motion overruled. Judgment of death ivas pronounced and the prisoner appealed.

Attorney General, for the State.

IF. MgL. McKay, for the prisoner.

Reade, J.

The expression, by his Honor, of his strong indignation, that persons within hearing of the alleged violence did not rush to the rescue of the woman upon whom the violence was alleged to have been committed, and of his eagerness for an opportunity to punish them for their cowardliness, w’hs a clear intimation of his opinion that the violence was committed, and that the prisoner was guilty. Such intimation ■of his opinion upon the facts -is forbidden by statute, and, as has often been decided, entitles the prisoner to a new trial.

There rs error.

Pee Curiam. Venire de novo*