State v. McGaha

CARLTON, Justice.

Gene 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 “[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 . . . .” (Emphasis added.) The indictment alleged that the victim was “a child 12 years 8 months old and thus of the age of 12 years or less . . . .” Before tendering his plea of guilty to this charge and five other sex crimes, McGaha told the court: “I 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.” McGaha then was sentenced to life imprisonment for the first-degree sex offense, the sentence to run concurrently with other sentences imposed.

Defendant 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 “12 years or less.” In essence, defendant argues that once a child passes his twelfth birthday he is over twelve years of age; he is no longer “12 years or less.” We must agree.

A 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’s death. *701 The widow was entitled to the funeral benefits only if her husband was not “over fifty years” when he enrolled in the association. The husband’s 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, “when 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.” Id.

So it is here. When defendant’s 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 “12 years or less.” 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).

The 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.

The State also contends that “common practice” 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 “common practice,” 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 “12 years or less,” he is 12 and more.

In 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.

*702 Our 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, “[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.” (Emphasis added.) The legislature’s use of the juvenile’s “birthday” 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.

In 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).

A 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.)

State v. Perry, 291 N.C. 586, 589 , 231 S.E. 2d 262, 265 (1977).

Here, 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 *703 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).

For the reasons stated, we must arrest the judgment.

Judgment arrested.