# Petition — Armstrong v. North Carolina > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2047%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 428 U.S. 902 ## Text MICHAEL RODAK, dn.cuEnt IN THE SUPREME COURT OF THE UNITED STATES October Term, 1975 No. 75- 5076 ERNEST FRANZILLE ARMSTRONG, Petitioner, Yo STATE OF NORTH CAROLINA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA JACK GREENBERG JAMES M. NABRIT, III PEGGY C. DAVIS DAVID E. KENDALL ERIC SCHNAPPER 10 Columbus Circle New York, New York 10019 f ANTHONY G. AMSTERDAM Stanford University Law School if Stanford, California 94305 | ADAM STEIN CHARLES L. BECTON Chambers, Stein, Ferguson & Becton 157 East Rosemary Street Chapel Hill, North Carolina 27514 WILEY F. BOWEN P. O. Box 151 Dunn, North Carolina 28334 ATTORNEYS FOR PETITIONER ' ' ' ' TNDEX Page Citation to Opinion Below .....ceeeeeeecees ecvccccceces l Jurisdiction .cccoccccccccecece TEPTTEETITILILILE TTT ° 1 Question Presented ......cceeeeees ecccccccccececoscceses 2 Constitutional and Statutory Provisions Involved ...... 2 Statement Of the CaSE ccccccccccccccccscscesesesssesees 3 How the Federal Question was Raised and Decided Below . 12 Reasons for Granting the Writ The Court Should Grant Certiorari to Consider Whether the Imposition and Carrying Out of the Sentence of Death i for the Crime of Rape Under the Law of North Carolina Violates the Eighth or Fourteenth Amendment to the Consti- tution of the United States .....cc.ccecceces 13 ! | Conclusion ....cceceeces TETTITULITILITL LITT 14 TABLE OF CASES | Dillard v. North Carolina, No. 73-6875 (filed June 11, UOTE) ccccccccccceccececeeceece soececccocsococeboese 13 ' Fowler v. North Carolina, No. 73-7031 (cert. granted Seteied BG, BGG i056 den ccadoesesess ab eedeceedsens 13 Noell v. North Carolina, No. 73-6876 (filed June 11, 1974) cccccccccceces eeccecececcces ecccccccecceseos eccs 13 State v. Waddell, 282 N.C. 431, 194 S.E.2da 19 (1973)... 2,3,4 | State v. Williams, _N.C. __,212 S.E.2d 113 (1975)..... 4,5 Statutes: ' | N.C. Geng Stat. §14-2l(repl. vol. BOSD) cccwccccesececse ee 2 §14-21(1974 supp.) “eevee eee eneneeneeneeanenenee - 3 | §15-187(repl. vol. 1975)........ coccces 2 615-188 (repl. vol. 1975) ...ceeeeeceees 2 H.B. 953, c. 749 (N.C. Leg. Sess. 1975).....-ee-- oeeese 5 28 «U.S.C. §1257(3)....... ere" pibenebeentsnesseoec ae 1 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1975 No. 75- ERNEST FRANZILLE ARMSTRONG, Petitioner, i, STATE OF NORTH CAROLINA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA Petitioner prays that a writ of certiorari issue to review the judgment of the Supreme Court of the State of North Carolina entered on April 14, 1975. CITATION TO OPINION BELOW The opinion of the Supreme Court of North Carolina is reported at N.C. _, 212 S.E.2d 894 (1975), and is set out in Appendix A hereto, pp. la-5a, infra. JURISDICTION The judgment of the Supreme Court of North Carolina was entered on April 14, 1975, and is set out ih Appendix A hereto. Jurisdiction of this Court is invoked under 28 U.S.C. §1257(3), petitioner having asserted below and asserting here deprivation of rights secured by the Constitution of the United States. QUESTION PRESENTED Whether the imposition and carrying out of the death for the crime of rape under the law of North C sentence of arolina violates the Eighth or Fourteenth Amendment to the Constitution of the United States? CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 1. This case involves the Eighth and Fourteenth Amendments to the Constitution of the United States. 2. This case also involves the following provi the General Statutes of North Carolina: NsC. Gen. Stat. §14-2l(repl. vol. 1969): “Punishment for rape.-- Every person who is sions of convicted of ravishing and carnally knowing any female of the age of twelve years or more by force and against her will, or who is convicted of unlawfully and carnally knowing and abusing any female child under the age of twelve years, shall suffer death: Provided, if the jury shall so recommend at the time of rendering its verdict in open court, the punishment shal l be imprisonment for life in the State's prison, and the court shall so instruct the jury." 1/ N.C. Gen. Stat. §15-187 (repl. vol. ‘1975): “Death by administration of lethal gas.--Death by electrocution under sentence of law is hereby abolished and death by the administration of lethal gas substituted therefor." N.C. Gen. Stat. §15-188 (repl. vol. 1975): “Manner and place of execution--The mode of executing a death sentence must in every case be by causing the convict or felon to inha lethal gas of sufficient quantity to cause le death, and the administration of such lethal l/ As construed in State v. Waddell, 282 N.C. 431, (1973). 194 S.E.2d 19 a gas must be continued until such convict or felon is dead; and when any person, convict or felon shall be sentenced by any court of the State having competent jurisdiction to be so executed, such punishment shall only be inflicted within a permanent death chamber which the super- intendent of the State penitentiary is hereby authorized and directed to provide within the walls of the North Carolina penitentiary at Raleigh, North Carolina. The superintendent of the State penitentiary shall also cause to be provided, in conformity with this article and approved by the Governor and Council of State, the necessary appliances for the infliction of the punishment of death in accordance with the require- ments of this article." STATEMENT OF THE~CASE This is a petition for a writ of certiorari to review the judgment of the Supreme Court of North Carolina, entered on April 14, 1975, affirming petitioner's conviction and death sentence. Petitioner, Ernest Franzille Armstrong, a black man, was sentenced to die on March 21, 1974, in the Harnett County Superior Court of North Carolina upon conviction for the rape 2/ of Mrs. Roena Massey, a black woman. 2/ Petitioner's sentence of death was imposed under N. C. Gen. Stat. §14-21 (repl. vol. 1969), as construed in State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (January 18, 1973). The North Carolina Legislature subsequently enacted a statute, S.B. 157, Chap. 1201, 1973 Sess. (2nd Session, 1974) effective April 8, 1974, which imposes the death penalty for certain “first degree" rapes. This statute, ‘now codified as N.C. Gen. Stat. §14-21 (1974 supp.), provides: “Rape; punishment in the first and second degree.-- Every person who ravishes and carnally knows any female of the age of 12 years or more by force and against her will, or who unlawfully and carnally knows and abuses any female child under the age of 12 years, shall be guilty of rape, and upon convic- tion, shall be punished as follows: Mrs. Massey, who was the 69 year old aunt of Sherill "Pem 2/ cont'd. (a) First-Degree Rape-- (1) If the person guilty of rape is more than 16 years of age, and the rape victim is a virtuous female’ child under the age of 12 years, the punishment shall be death; or (2) If the person guilty of rape is more than 16 years of age, and the rape victim had her resistance overcome or her submission procured by the use of a deadly weapon, or by the infliction of serious bodily injury to her, the punishment shall be death. (b) Second-Degree Rape--Any other offense of rape defined in this section shall be a lesser-included offense of rape in the first degree and shall be punished by imprisonment in the State's prison for life, or for a term of years, in the discretion of the court." However, the Supreme Court of North Carolina has expressly ‘held that the enactment of this statute did nct affect death sentences for rape imposed under the State v. Waddel] procedure. In State v. Williams, _N.C.__, 212 S.E.2d 113 (1975), the Court affirmed a death sentence for “rape” which had been imposed under the Waddell procedure for a crime committed on May 16, 1973, which, if it had been committed after April 8, 1974, would appear to have been non-capital second-degree rape. The Court ruled that the 1974 rape statute was nowise retroactive: “In clear, explicit terms the Legislature provided ‘This act shall become * * * applicable to all offenses hereafter committed.' Had these words been omitted, the Act would, nevertheless, apply .o all offenses committed afte its effective date, 8 April 1974. Consequently, these words were not used for the purpose of giving the Act that effect. It is a well established principle of statutory construction that a statute must be construed, if possible, so as to give effect to every part of it, it being presumed that the Legislature did not intend any of its pro- visions to be surplusage ... . We construe the pro- vision in the 1974 Act, ‘This act shall become * * * applicable to all offenses hereafter committed’ as a saving clause, showing the intent of the Legislature to leave the preexisting statute in effect as to the elements of and punishment for the crime of rape committed prior to 8 April 1974." 212 S.E.2da at 119-120. Chief Justice Sharp, 212 S.E.2d at 123-125, ee meet Pam" Stewart, first saw petitioner when he visited her home in 2/ cont'd. and Mr. Justice Exum, 212 S.E.2d at 121-122, dissented from this construction of the 1974 rape statute and would have applied it retroactively to invalidate a death sentence which was imposed “for a crime which is not now punishable by death," (212 S.E.2d at 125 (dissenting opinion of Chief Justice Sharp)). In the decision announced in petitioner's case, a majority of the North Carolina Supreme Court declined to vacate petitioner's death sentence and to consider whether the evidence would have sus- tained only a non-capital seconde degree rape conviction in a post- April 8, 1974 case. Chief Justice Sharp, Mr. Justice Exum, and Mr. Justice Copeland dissented from this ruling for the reasons stated in the State v. Williams dissents. 212 S.E.2d at 898; App. A, infra, at 5a. On June 24, 1975, the North Carolina General Assembly enacted H.B. 953, c. 749 (1975 Sess.), effective immediately, which provides that any defendant sentenced to death for a rape occurring after January 18, 1973, and prior to April 8, 1974, whose death sentence was sustained on appeal may apply to a trial judge of the judicial district in which the rape trial was held “to determine whether the defendant could have been punished by death had the rape been committed by him after the ratification of Chapter 1201, Session Laws of 1973," (Section 2(a)). Section 2 of this law provides: “(b) Said judge shall review a certified transcript of the evidence presented at trial (or if such transcript is not available, the record on appeal), make such in- dependent investigation as he deems necessary to deter- mine the age of the defendant or of the rape victin, and hear arguments or accept briefs in behalf of the defendant and the State. (c) Thereupon, the judge shall determine the following question: Is the evidence presented at the defendant's trial, plus additional evidence of the age of the defendant or the age of the rape victim, sufficient to submit the defendant's case to a jury on the charge of first degree rape as defined by G.S. 14-21l(a), had the date of the rape been after April 8, 1974? (a) If the question is answered in the affirmative, the defendant shall remain subject to the sentence of death. If the question is answered in the negative, the judge shall forthwith schedule a hearing for the presentation of evidence relative to resentencing the defendant; after the hearing, the sentence of death for rape previously imposed shall be vacated,and the defendant shall be re- sentenced as if he had been convicted of a second degree rape fo a rape cummittec afte: April &. 2974.°* (Baapiie added). ~ 2 Coats, North Carolina, with Mr. Stewart at 7:30 p.m., November 10, 7 1973. Mrs. Massey “laughed and talked", R. 10, with her nephew (who, she later testified, appeared to her to have been drinking, R. 18) for about an hour; but petitioner, who said his name was “David", ibid., said nothing else and she said nothing to him. Stewart said he was going to his brother's surprise birthday party, R. 19, and told her that petitioner was “in the family," R. 11, because he was married to Stewart's wife's first cousin. Petitioner remained standing during the entire visit, although Mrs. Massey and her nephew were seated. R.18. The two men left about 8:30 p.m., and Mrs. Massey went to bed about 9:00 p.m. or 9:30 p.m. Ibid. About five minutes after midnight on November 1l, Mrs. Massey was awakened by the ringing of her doorbell. Thinking the caller was her granddaughter, she opened the door. Petitioner, who was wearing a pair of brown pants and a brown shirt with ruffles on it, R. 16, stepped into her house, telling her that “*'Ppem Pam said send him one of your stockings.'" R. 12. She was “positive” petitioner had been drinking because he smelled of alcohol. R. 20. She asked petitioner where her nephew was, 3/ The State's evidence consisted of the testimony of four witnesses (Mrs. Massey; L. R. Doffermyre, a medical doctor who examined Mrs. Massey on November 11, 1973; and two policemen, Ronald V. Peters and Charles L. Beegle) and three exhibits (the pants and shirt petitioner was wearing on the night of the rape, and a statement which the police took from Mrs. Massey. ) However, no chemical tests were performed on the clothes and Mrs. Massey's statement was introduced for corroboration and not as substantive evidence. The presentation of the State's case occupies 22 pages of the 74-page record on appeal. Cag er errers +. eetip -* "+ POD MOE AO CG ee fee Oe “7. Ve agGporee aren. ee ern ere ee ot eee - . o a ° — ——— es a et ee ee ee oe a ee A A Renee since petitioner appeared to be alone. He did not respond to her question but simply repeated that “Pem Pam said... to send him one of .. . fher]) stockings,” ibid. Petitioner followed Mrs. Massey into the den of the house: “I told him I weren't going to do it and after a while he said ‘you ain't going to send him the stocking then?' I said ‘No.’ I said ‘Go tell Pem Pam I said go home to his wife and family and go to bed because I am not going to send it ['] and I meant just that, and by that time he was just staring at me so fearless until I saw there was something in him that weren't right and I got frightened and I began to back off from him and as I was backing off. [sic] I just had my gown on. When I got frightened, well, I begin to back back [sic* towards my kitchen sink and he was advancing up on me, and he just kept advancing up on me as I was walking backwards. eo He says ‘I tried to talk nice to you [']Jand says {'}] you wouldn't listen but I bet you will.'‘" R. 12. Petitioner then seized Mrs. Massey and put his arm around her neck and his hand over her mouth; he declared “‘'do like I tell you and I won't hurt you.'" Ibid. He repeated ""'and you ain't going to send the stocking?'", R. 13, and when she said no, he gagged her with a pair of nylon hose which were lying on a chair: “He didn't say why he did this, only he just said ‘I'm going to do something, I am going to do somethibg [sic], do something like Pem Pam is doing over there in that white house. I'm going to do something, that is all. Do like T tell you and I won't hurt you, do like I tell you and I won't hurt you.’ After he put the panty hose in my mouth there was nothing I could do. I sure was frightened then, you know I was. He just kept pulling on me and seesawing me and zigzagging me until he got me in my bed- room and he said ‘be nice now and I won't hurt you, be nice now and I won't hurt you. I am going to do like Pem Pam is doing over yonder in that white house. I am going to do something.' He didn't say what he was goiny to do. No, he didn’t, and there beside of my bed I had a scatter rug when Ll gov EN A ee et en ET RR oT EE eee Petey ey et ae litete emer 6 Oe ren pers: EE OI A te te e . . os . ae . there beside the bed on the floor and when I stepped on that rug I slipped to my knees and he told me then to [' ]get up and get on the bed, get up and get on the bed. Be nice and I won't hurt you.*” R. 13-14. Petitioner maneuvered her onto the bed and had sexual inter- course with her. He carried no weapon of any kind and Mrs. Massey testified that he did not strike her. R. 21. She “did not at any time scream out on this particular night," R. 20, because "I ain't ' never been no scareder since I have been born in the world than I was then." R. 14. Petitioner said nothing while he put his clothes on. As he left, he inquired, “"You ain't going to put the law on me is you?'", R. 15, and Mrs. Massey said she would not. He asked if she had a telephone and she said that she did not. Ibid. He then said: “‘If I come back here and knock the door lightly and say, It's David, will you open the door and let me in?'” Ibid. She said she would, and petitioner left, carrying the nylon hose with him. Mrs. Massey immediately went to her granddaug}l.ter's house, about a block away, and told her what had happened. Her grand- daughter then called the police. Ibid. Doctor L. R. Doffermyre testified that he had performed an internal examination of Mrs. Massey at 11:00 a.m., November 11, 1973. She told him that she had been raped about ten hours earlier by a black male whose name she did not know but who had we te Pree -—- — — ~er 6 RD OR Re FN FER” orem gt rete: Sore the & me OP Pe me PEO Y RR mer lien Meat aad Dette ~1 Et oo visited her home with her nephew the previous evening. The mucus membrane of the vagina exhibited a slight tear, but there was no bleeding. Sperm were found in the vagina and Dr. Doffermyre con- cluded that “she had definitely had intercourse.” R. 26. The Coats Chief of Police, Ronald V. Peters, testified that he had conversed with Mrs. Massey at her house at 1:15 a.m., November 11, 1973. She told him she had been raped and he wrote out a “verbatim” statement, R. 29, of what she told him. Mrs. Massey signed this statement, ibid., which was introduced at trial to corroborate her testimony. Chief Peters testified that he knew the “general character and reputation" of Mrs. Massey | in the community in which she resides and that it was "very good." R. 31. Another Coats policeman, Charles L. Beegle, testified that when he arrested petitioner at his house at 2:00 a.m., November 11, 1973, he saw clothing described by Mrs. Massey on petitioner's couch. R. 32. Beegle seized a pair of brown trousers and a brown shirt with ruffles. R. 27, 32. Mrs. Massey identified these items as the clothes petitioner wore on the two occasions when he visited her house. R. 27. Petitioner testified in his own defense and did not deny having sexual intercourse with Mrs. Massey in the early morning of November 11, 1973. He claimed, however, that on his first visit to Mrs. Massey's house, she had spoken to him while her nephew was in the bathroom and had invited him to return alone later that night. R. 38. Petitioner testified that, when he 0 eh UR OD ewe eer POR OT Le OR RREE * 10» 8 tm for ~~ ew erent AO, genie ant nee tillen waa a ts be £ - —- ' - %s - returned shortly after midnight, she knowingly let him into the house, voluntarily disrobed, and acquiesced in his desire to 4/ have intercourse. Sherill “Pem Pam" Stewart testified as a 4/ Both petitioner and Stewart testified that they had been drinking heavily before and after their visit to Mrs. Massey's house. R. 34, 41-42. Petitioner testified that during Stewart's brief absence to go to the bathroom, Mrs. Massey “asked me could I come back and I told her I didn't know if I would come back later because I works and I didn't know if I could come back that night due to that was my first time at her home, but I would see about it." R. 37-38. "After I arrived the second time I rang the doorbell and she came and opened the door, and seen who I was and she said ‘Come in‘. So, I walked in and we walked to the kitchen area or rather the den area where we had -- which we had a conversation there and that is where we came up with about sex. She told me that she could fool a lot of men, lot of young men and I told her if she could I would like for her to fool me. So, and then we talked and I just can't remember all exactly what we said then and then we moved into the bedroom. After moving into the bedroom she sit on the bed and stood at the foot part of the bed and she laid down, after she had layed down then I sit on the bed and while talking to her I leaned over and placed my hands on her shoulder and we talked. So, I got up and she asked me then ‘What are you going to do?' And, I said ‘I can't do nothing with my clothes on.' So she begin to pull up her gown and I stood near the foot of the bed and opened my pants and my underwear and after that -- well, proceeded in the bed. I had intercourse with her at that time.” R. 38. As petitioner started to leave, “[s]Jhe asked me ‘Would you be coming back?' I said I don't know whether I will get back soon or not and after that I started to walk, I left off the porch and went to the -- I got in the yard between her porch and my car and she told me saic ‘I don't want to hear any- thing else about this.' So, I said, ‘I can't, I'm married too.' So, she asked me before I got to my car, she said 'Do you have any money defense witness, corroborating several details of petitioner's testimony, although he stated that he did not hear petitioner and Mrs. Massey conversing while he was in the bathroom. R. 34- 35. Petitioner was committed to the Dorothea Dix Hospital in Raleigh, North Carolina, for a competency examination before trial. Although he was found to be “somewhat retarded,” R. 7, with a history of “blackout spells", ibid., and although he was determined to be “functioning at a sub-normal intelligence level," ibid., he was pronounced “Not insane" and “competent to 5/ stand trial at the present time" R. 8. 4/ cont'd. on you?' and I said ‘No, I don't have any [, ] not right now.' I said I don't have any right now because the money that I was using I got that from Pem Pam which he had borrowed and I got in my car and left." R. 39. According to petitioner, he weighec 236 pounds and was five feet, nine inches tall: "I really couldn't say how much Roena [Massey] weighed . . . I suppose she does weigh considerably less than I do. She did not tell me she was 69 years old." R. 40. Petitioner admitted that he had been convicted of “destroying State property," ibid., jumping off a train on the hood of a police car," ibid., “white slavery," ibid.,"shooting [a pistol illegally]," ibid., “robbery,” R. 41,"attempt to commit robbery," ibid., and “escape,” ibid. A great deal of the State's cross examination was spent delving into the facts of these criminal convictions and other alleged criminal activity, and to establishing the amount of time that petitioner had spent in jail and in prison. See R. 39, 40-41, 43, 48-50. 5/ The psychiatric report prepared after petitioner's examination concluded: "Mental Status and Physical Examination: Upon admission he seemed somewhat retarded but was cooperative. Again he complained of occasional dizzy spells and voices calling his name. He gave rational answers most of the time, but he is circumstantial [sic] for moments. He is oriented with memory defect for some events, doing poorly - ll - A tye ounere bnebite & 64 Imposition of death penalty for rape was leyally authorized and did not consti- tute cruel and unusual punishment. USC A.Const. Amends. 8, 14 10, Rape O>59(20) In rape prosecution, wherein only dis- pute between State and defendant was whciher admitted act of sexual intercourse Was sccompished by consent or by force, there was no necessity to submit lesser in- {la} STATE +. ARMSTRONG Cite as 212 5.0.20 94 cluded offenses of assault with intent to commit rape and assault on female. 11. Criminal Law ¢=795(1) Lesser included offenses must be sub- mitted only where there is evidence to sup- port them. 12. Criminal Law @1165(3) Error favorable to defendant did not warrant reversal. Defendant was tried upon a bill of indict- ment, proper in form, charging him with the rape of Roena Massey on 11 November 1973 in Harnett County. The State offered evidence tending to show that Rocna Massey is the aunt of Sherill Donald Stewart. At approximately 5 p.m. on 10 November 1973 the defendant Ernest Franzille Armstrong and Sherill Donald Stewart were together in the town of Benson drinking scotch and beer. About 7:30 p.m. they went to the home of Roena Massey in the nearby town of Coats where they remained for approximately one hour. Roena Massey did not know defendant and had never seen him before. Both men stat- ed that Stewart's wife and defendant's wife were first cousins. They left about 8:30 p.m., and Roena Massey went to bed around 9:30 p.m. The two men toured several night spots in. Harnett County and separated after re- turning to Benson. Defendant returned to the home of Roena Massey about midnight, and she was awakened when he rang the doorbell. She arose, turned on the light, unlocked the wooden door and then un- locked the storm door. Defendant stepped inside. Mrs. Massey said she thought it was her granddaughter and opened the door without paying much attention Defendant followed Mrs. Massey into the den. She asked him what he was doing there, and he replied: “Perm Pam [Sherill Donald Stewart} said send him ene of our stockings.” Mrs. Massey informed defond- ant she would do nothing of the sort. De- [2a] A A tse N.C. 895 fendant was staring at her and she com. menced to back away while defendant .-a« advancing upon her. Defendant said, “! tried to talk nice to you and you wouldn': listen but I bet you will.” He threw his arms around her neck, placed his hand over — her mouth and said, “Do like 1 tell you and 1 won't hurt you.” Defendant gagged Mrs. Massey with her panty hose, forced her into the bedroom and raped her. Defendant thereupon left after exacting a promise from her that she woule not “put the law on him.” Mrs. Massey then ran to the nearby home of her grand. daughter, told her what had happened, anu she called the police. Mrs. Massey was examined by Dr. Dof fermyre at 11 a.m. on 11 November 1973 She gave the doctor a history of havinp been raped the night before by « colored man whose name she did not know. The examination revealed the presence of sperm in all microseopic fields, and Dr. Doffer- myre stated that unquestionably the pa tient had had intercourse. The bottom wall of the vaginal vault revealed a split in the mucous membrane one and one half inche: long, and the injury appeared to be recent. The State's evidence further shows that Mrs. Massey was sixty-nine years of age and weighed approximately 110 pounds. She had lived in and around the town of Coats for approximately twenty years and had no criminal record. The police chief testified that her general reputation in the community was very jrood., Defencant, testifying in his own behalf, stated that he and Stewart were drinking, and while they were at Mrs. Massey's home he told her his name was “Cherry” and she asked him to return later. In response to chat invitation he returned about midnight and wus admitted to her home. They en- paged in sexual relations by mutual con- sent. Thereafter they talked for a while and she accompanuw«l him to the front door when be departed. On cross-examination defend>nt stated that he was thirty-one years old and 896 N.C. weighed 236 pounds; that he had heen con- vieted of destroyings State property in Ben- ton, Louisiana, and of other crimes in Fl Paso, Texas, Montgomery, Alahama, Jack- sonville, Florida, Texarkana, Arkansas, and New Orleans, Louisiana. Sherill Donald Stewart testified that he and defendant went to the home of Roena Massey about 7:30 p.m. on 10 November 1973 and stayed about forty-five minutes; that he left the room on one occasion while they were there and, of course, heard no conversation between defendant and Mrs. Massey during his absence. He stated that defendant said nothing about returning to Mrs. Massey's home but said he was going: home when they parted about 9:30 p.m. The trial court instructed the jury to return one of the following verdicts: Guilty of rape, guilty of assault with intent to - commit rape, guilty of assault on a female, or not guilty. The jury convicted defend- ant of rape, and he was sentenced to death, From that judgment he appeals to this Court assigning errors noted in the opinion. Robert Morgan, Atty. Gen and William F. O'Connell, Asst. Atty. Gen., Raleigh, for the State of North Carolina. Wiley F. Bowen, Dunn, for defendant-ap- pellant. HUSKINS, Justice: The defense in this case is based on con- sent. lied upon by the State to show resistance on Defendant contends the evidence re- the part of Mrs. Massey is inconclusive and the trial judge failed to declare and explain the law, as required by G.S. § 1-180, rela- tive to Mrs. Massey's conclusion that resist- ance on her part would be useless. This constitutes the basis for defendant's first assignment of error The court charged on this point as fol- lows: “Now, I charge you for you to find the defendant guilty of rape the State must prove three things beyond a reasonable doubt: * 212 SOUTH EASTERN REPORTER, 24 SERIES First, that the defendant had sexual intercourse with Roena Massey. Second; That the defendant used or threatened to use foree sufficient to over- come any resistance she might make. Now, in reference to force the court in- structs you that force necessary to consti- tute rape need not be actual physical foree. Fear, fright or coercion may take the place of force. While consent by the female, Roena Massey, is a complete de- fense for the defendant, consent which is induced by fear of violence is void and is not legal consent. Consent of the woman for fear of per- sonal violence is void. Even though a man lays no hand on a woman yet if by an array of physical force he so overpow- ers her mind that she dares not resist or she ceases resistance through fear of great harm, the consummation of the un- lawful intercourse by the man is us a matter of law rape. The third point that must be proven to you by the evidence and beyond a reason- able doubt is that Roena Massey did not consent and it was against her will.” [1-3] The quoted portion of the charge clearly enunciates the law of this State. Rape is the carnal knowledge of a female person by force and against her will. State v. Flippin, 280 N.C. 682, 186 S.B.2d 917 (1972). Fear, fright or coercion may take the place of actual physical force. State v. Williams, 275 N.C. 77, 165 S.B.2d 481 (1969). Although consent by the female is a com- plete defense to a charge of rape, there is no legal consent when it is induced by fear of violence.. State v. Carter, 265 N.C. 626, 144 S.B.2d 826 (1965). [4] Mrs. Massey testified, among other things, that she was terribly frightened, that “he had done throwed his arm around my neck like that and was choking me (indicating) and hand come oyer my mouth. I sure wus frigheotb. He was holding me hy my neck ! began io give up because | didp’t know where he was going to kill me or what he {3a} STATE v. ARMSTRONG Cte as 212 S24 894 was going to do to me and | was there alone in that house by myself. . . . 1 couldn't get away from him beeause he had me around the neck like this choking me and his hand ever my mouth there weren't no way for me to. He just kept pulling on me and scesawing me and zig- zagging me until he got me in my bedroom I ain't never been no scareder since I have been born in the world than I was then. . Weren't no way in this world for me to yell for help no way.” There is nothing in the testimony of Mrs. Massey to support the suggestion that she consented. The only reasonable inference to be drawn from her testimony is that she did not consent and that she resisted to the best of her ability. Her strugyles ceased when she realized she was helpless to pro- tect herself and was in fear of death or serious bodily harm at the hands of a thir- ty-one year old man weighing 236 pounds. Hence, in accordance with well established legal principles, there was ample evidence to support defendant's conviction for rape. State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974); State v. Primes, 275 N.C. 61, 165 $.E.2d 225 (1969). Defendant's first assign- ment of error is overruled. Failure of the court to set aside the ver- dict and arrest judgment constitutes de- fendant's second assignment of error. We find no merit in this assignment for the reasons stated below. [5] A motion to set aside the verdict as being contrary to the weight of the evi- dence is addressed to the discretion of the trial judge. State v. Arnold, 2%4 N.C. 41, 199 S.E.2d 423 (1973); State v. Henderson, 276 N.C. 430, 173 S.E.2d 21 (1970). The evidence amply supports the verdict. No abuse of discretion is shown. [6] A motion in arrest of judgment is made after verdict, designed to prevent en- try of judgment, and is based upon the insufficiency of the indictme... or some oth- er fatal defect appearing on the face of the record. State v. McCollum, 216 N.C. 737, 6 S.F.2d 593 (1940). “In « er: tinal prosecu- i4a] N.C 897 tion, however, judgment may be arrested when—and only when—-some fatal error or defect appears on the face of the record proper.” State v. Kirby, 276 N.C. 123, 171 S.F.2d 416 (1970); State v. Higgins, 266 N.C. 589, 146 S.E.2d 681 (1966). [7,8] The record proper in criminal cases ordinarily consists of (1) the organiza- tion of the court, (2) the charge, i. e., the information, warrant or indictment, (3) the arraignment and plea, (4) the verdict, and (5) the judgment. State v. McClain, 282 N.C. 357, 193 S.E.2d 108 (1972); State v. Tinsley, 279 N.C. 482, 188 S.£.2d 669 (1971). Here, the face of the record proper reveals no fatal defect, and denial of defendant's motion in arrest of judgment was proper. Defendant's second assignment of error is overruled. {9} Finally, defendant contends that im- position of the death penalty is legally un- authorized and constitutes cruel and un- usual punishment prohibited by the Eighth and Fourteenth Amendments to the Consti- tution of the United States. This conten- tion has heretofore been considered and de- termined to be without merit in various cases, including State v. Henderson, 225 N.C. 1, 203 S.B.2d 10 (1974); State v. Dil- lard, 285 N.C. 72, 203 S.B.24 6 (1974); State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974); State v. Jarrette, 284 N.C. 625, 202 S.B.2d 721 (1974); State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973). Defendant's third as- signment based on this contention is over- ruled. [10-12] It should be noted that all of the evidence in this case reveals a complet- ed act of sexual intercourse. The only dis pute between the State and the defendant is whether the act was accomplished by ecnsent or by foree. Under those cireum- stances there was no necessity to submit the lesser included offenses of assault with intent to commit rape and assault on a female. Lesser included offenses must be submitted only when there is evidence to support them. State v. Watson, 2&3 NLC. 383, 196 S.B.2d 212 (1973); State v. Bryant, 898 N.C. 280 N.C. 551, 187 S.E.2d 111 (1972). Sub- mission of the lesser included offenses, how- ever, was error favorable to the defendant and affords him no grounds for relief. We have carefully examined the entire record and conclude that defendant re- ecived a fair trial, free from prejudicial error. The trial, verdict and judgment must therefore be upheld. No error. SHARP, Chief Justice, dissents as to the death sentence and votes to remand for imposition of a sentence of life imprison- ment for the reasons stated in her dissent- ing opinion in State v. Williams, 286 N.C. 422, 434, 212 S.B.2d 113, 123 (1975). COPELAND), Justice, dissents as to death sentence and votes to remand for imposition of a sentence of life imprisonment for the reasons stated in his dissenting opinion in State v. Williams, 286 N.C. 422 at 437, 212 $.0.2d 113 (1975). , EXUM, Justice, dissents from that por- tion of the majority opinion which affirms the death sentence and votes to remand this case in order that a sentence of life impris- onment can be imposed for the reasons stat- ed in his dissenting opinion in State v. Wil- liams, 286 N.C. 422, 212 S.B.2d 113 (1975). James T. SPEIGHT and Maggie Ib. Speight ¥. Plijah H. GRIFFIN and Pdith V. Griffin. No. 7418SC899, s Court of Appeals of North Carolina March 19, 1975. Plaintiff brought action against de- fendants, the owners of an adjoining lot, to 212 SOUTH EASTERN REPORTER, 2d SERIES recover for trespass and diversion of sur- face water onto plaintiff's property. The Superior Court, Guilford County; James M. Long, J., allowed defendants’ motion for judgment notwithstanding the verdict in favor of plaintiff and entered judgment in favor of defendants. The plaintiff appeal- ed. The Court of Appeals, Vaughn, J., held that defendants, whose land was higher than plaintiff's adjoining property, were not liable to plaintiff for damage caused by the flow of surface waters that occurred when defendants’ old gravel driveway, that tended to absorb and drain surface waters away from plaintiff's property, was re- placed with a conerete driveway that did not absorb and drain water away from the lower lot. Affirmed. e Waters and Water Courses @=119(1) Defendants, whose land was higher than plaintiff's adjoining property, were not liable to plaintiff for damaye caused by the flow of surface waters that occurred when defendants’ old gravel driveway, that tended to absorb and drain surface waters away from plaintif{'s property, was re- placed with a concrete driveway that did not abserb and drain water away from the lower lot. This is an action to recover for trespass and diversion of water onto plaintiff's prop- erty. Plaintiff and defendants are adjoining lot owners on Willow Road in a subdivision in Guilford County. Defeadants’ property is on higher ground than plaintiff's. Defend- ants formerly had a gravel driveway which ran from the strect towards the rear of the lets and was located newr the property line ©! the partics. There was no problem with water from defendants’ higher lot. The water generally flowed down the gravel droweway to the rear of the lots. Plaintiff 5a) 7 Appendix B Pp. 11-51, Petition for Writ of Certiorari to the Supreme Court of North Carolina, Dillard v. North Carolina, No. 73-6875 (tiled June ll, 1974). —— - 508 24 at 162). . a-n.-+oe- s-ecettrcroe :¢ - 87: ‘Some.of these -new ‘statutes: provide ‘that © a court or jury must make a separate determination as to whether a defendant should be, sentenced to life or. death independently of its finding the defendant guilty ofa capital crime; conviction of a particular offense does. not, “therefore, 1 necessarily result in a death sen- tence.. Some of- these laws provide a~ single verdict proceeding, in which the trial judge or jury must return a general verdict finding a defendant - guilty of a. capital degree cf the offense. Del.* Code, tit. 11, § 636 (1974), as amended by Del. H.B. No. 429, 127th Gen. Ass. (1974);_N. Il, Rev. Stat. Ann. § 630:1(1) (1973), as_usiended by N.H. S.B: 27, Chap. 34, Acts of 1974, N.u.- Gen, Ct.; N.Mex. Stat. §§ 40A-2-1, 40A-2-1(A), 40A-29-2 (1974): N.C. Gen. Stat. §§ 14-17, 14-21, as amended by S.B. 157, Chap. 1201, 1973 Sess. ‘laws (2nd Sess.-1974); Tenn. Code Ann, §§ 39-2402 (as amended by Pub. Chap. 462,-Tenn. Laws 1974), 39-3702 (as amended by Pub. Chap. 461, Tenn. Laws 1974) (1974). Others of these statutes provide a unitary proceeding where a jury must return a verdict finding special facts to justify the death sentence,. Ind. Code § 10-3401 (1974); Ky. Rev. Stat. Chap. 507, as amended by Ky. H.B. No.° 232, Reg. Sess. 15974; La. Rev. Stat. §§ 14:30, 14:42, 14: 44, (14:123 (1974); La. Code 7 ~~ ! 0 O | somewhat in the questions they present regarding their compliance - 2+ = ' , with Furman and with the Eighth and Fourteenth Amendments to 8/ cont'd Crim. Proc., Art. 557, 598, 817 (1974); Miss. Code §§ 97-3-19, _ 97-3-65 (1974), as amended by Miss. S.B. No. 2341, Reg. Sess. ; 1974; Mont. Code ¢§ 94-5-102, 94-5-103, 94-5-105, 94-5-304 | (as amended by Mont. H.B. No. 643, Mont. Gen. Law5 1974) (1974); ' Nev. Code § 200.030 (1974); Okla. Stat., tit. 21, §§ 701.1, 701.3, 701.6 (1974); Wyo. Stat. § 6-54 (1974). Among the new ' | laws which provide a bifurcated proce. “ing to make this separate ' @etermination as to sentence, some aliow imposition of sentence without any particular finding identified by the legislature as a prerequisite for imposing either a sentence of death or lite ; imprisonment. Ga. Code § 27-2534.1 (1973), as amended by ' No. 74, Ga. 1973 Sess. Laws at 162-172; Utah Crim. Code §§ 76- 3-206, 76-5-202, 76-5-302, 76-3-207 (1974). Others of these ; bifurcated trial] statutes require the imposition of a death | sentence when a certain finding is made at the sentencing pro- | ceeding; some identify a particular circumstance which jwtifies : , Imposition of a @eath sentence. Cal. Penal Code §§ 190, 190.1, “4190.2, 209, 219, 4500 (1974); Ill. Code §§ 5-8-la, 9-1 (1974); I Tex. Pen. Code § 19.02 (1974); Tex. Code Crin. Proc., Art. 37.071 , (1974); others identify such circumstances but provide that such | “aggravating” circumstances may be counterbalanced by the finding | of “mitigating” circumstances in some unspecified fashion, Ariz. | ) Rev. Stat. §§ 13-452 - 13-454 (1974; Ark. Code §§ 41-4702 - 41-4713 | Pla. Stat. §§ 782.01, 794.01, 792.141 (1974); Neb. Code §§ 28-401, | 29-2522, 29-2523, 29-2524 (1974); still others provide formulac i | for the weighting of “aggravating” against “mitigating” circum- j stances to determine which defendants shall be sentenced to death.!' ' Conn. Gen. Stat. § 53a-45 (1974); Ohio Rev. Code §§ 2929.03, 2929.04 (1974); Pa. Stat., tit. 18, § 4701 (1974), as amended by \-Pa, H.B. 1060, Act. 46, 1974 Sess. : i’ - I; Another group of statutes provides for the imposition of a ' death sentence by operation of law pursuant to a jury's or trial || Judge's conviction of a certain crime. Idaho Code §§ 18-4003, | 18-4004 (1974); R.I. Code § 11-23-2 (1974); New York: Ass. Bill y- 21474, 1974 Sess. Laws. ; ~ " Phe following States have not enacted legislation authoriz- : ing the death penalty since Fumsan: Alaska, Alabama, Colorado, Hawaii, Iowa, Kansas, Maine, Maryland, Massachusetts, Michigan, |, Minnesota, Missouri, New Jersey, North Dakota, Oregon, South || Carolina, South Dakota, Virginia, Washington, West Virginia, ' Wisconsin, Vermont. ——_—_——- - —_— -_—-——— - — — Soe. ee eo —— ee ee ee * -_ - os — — ; 9/ | the Constitution. It is a fair although gross generalization , that, in most States, the new statutes authorize capital punish- ment for a narrower category of offenses than those that were punishable by death in the same States before Furman. Of the 103 | men and women who have been sentenced to die in the United States ) 10/ - gince June 29, 1972, and who are presently on death row, roughly two-thirds were condemned under the new post-Furlwin statutes. tt . ll/ - - Virtually all of the remainder -- 31 men and women, to be hd - - -- . — 9/ The first decisions by the highest court of any State affirm- ing death sentences imposed under’ one of the new post-Furman statutes were handed down in a Georgia murder case, State v. House, Ga. Sup. Ct. No. 26678 (April 4, 1974) (rehearing denied, April 25, 1974); and in a Georgia rape case, State v. | Eberheart, Ga. Sup. Ct. No. 28776 (April 30, 1974) (rehearing 1q denied, May 21, 1974). Counsel for Mr. House and Mr. Eberheart (who include some of the counsel for petitioner Dillard) are presently pre- r 4 ‘| i! | ' | 4 a ! \ | paring to seck review by this Court of the Georgia Supreme Court's @ecisions. . . | t 10/ We cxclude from this computation a nunber of persons sentenc to death since Furman whose convictions or death sentences have been reversed or vacated on appeal. The 99 figure represents _ persons presently committed under unreversed and unvacated sentences of death. ae i 11/ Seven persons have been sentenced to die since Furman under the provisions of pre-Furmian_ statutes. The cases of | six of these persons (in Massachusetts, Montana, Pennsylvania, and South Carolina) are described in note 14,infra. The remaining case arises under a Virginia statute which the Virginia Supreme Court held distinguishable from the statutes invalidated in Furman. State v. Jefferson, Va. $.C., No. 730370, decided April 22, 1974. A petition for rehearing is presently pending in Jefferson. Should it be,denied, counsel for Mr. Jefferson (who are easociated with some of the counsel for petitioner Dillard) anticipate that review will be sought in this Court . " - 15 - it [5b] i | ! pS ed ee @s- oe + oe oe © O exact -- are on death row in North Carolina, where post-Ffurman developments took a markedly different turn by the margin of a single vote cn the North Carolina Supreme Court in the case of State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973). Prior to 1947, North Carolina law had required the imposition of the death penalty upon all convictions for the ‘crimes of first-degree murder, rape, first ines burglary, and arson. By enactments of 1947 and 1949, the North Carolina General Assembly en that, | in the case of convictions ‘for any of theso four offenses, the jury might spare the ac fendant 's life by a recommendation of life 12/ ; imprisonment. An unanimous Supreme Court of North Carolina 12/ The jury was given the power to recommend life imprisonment in arson and burglary cases in-1947, and in murder and rape cases -in 1949. We, have found no legislative history dealing directiy with the 1947 enactment. - “- -~- —. ‘and sensible meaning, - a meaning which under the settled law of this State is conclusively presumed to be the one intended by the Legis- lature. "It is patent that the sole purpose of the act is to give to the jury in all cases where a verdict of guilty of murder in the first degree shall have been reached, the right to recommend that the punishment for the crime shall be imprisonment for life in the State's prison . .. . No conditions ioe ~“ y « z@ : - — - - e e - -_-*- - - ~ - - - . -~- - - -- - -_- - - _-_-—]— - - -* 7 = - - - * - - aly BEST COPY AVAILABLE — em ee. ee ee - i! . ) © ©) i i 14 ' 1 'B. Th: Lawless Imposition Of Death Penalties The second issue presented is whether the re-institution of i lthe death penalty which the North Carolina Supreme Court achieved ‘by amputating life from that State's life-or-death sentencing ' \ statutes is a result that can constitutionally be effected by any \. ‘device of judicial decision wholly ungoverned and undirected by ‘} itleqislative action. It is, of course, generally true that the fed- eral Constitution is not concerned with how a State divides it law- making functions between its judicial and legislative organs. But ‘that generalization cannot be permitted to sweep away the funda- ee 1 ' |; judicial imposition of harsh criminal punishments unauthorized by . S 22 H |; law and in excess of the penalties provided by “the valid laws of | se ~ : , |the land." Giaccio v. Pennsylvania, 382 U. S. 399, 403 (1966). | || ~ “Recent scholarship has underscored that the English Bill of Rights, from_which the Eighth Amendment's prohibition of “cruel Jana unusual punishments" was derived, was in large measure directed . 15 : ‘toward preventing the exaction of unauthorized penalties. That '15/ Granucci, “Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 CAL. L. REV. 839, 845-847, 852-860 (1969). It | (3s true that Granucci also finé that the American Framers im- li perfectly understood the English background of the cruel-and-upr ‘usual-punishment clause, and that they themselves were principally ‘concerned with the problem of intrinsically barbaric penaltics. ‘But this does not support a conclusion that the Framers meant to ‘diminish the scope of a guarantee that they believed basic to their j traditions (see 3 ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS |\ON THE ADOPTION OF THE FEDERAL CONSTITUTION 447 (1863)), or to re-, ,ject protections of the citizen long preserved by their English -heritage. Indeed, as early as 1635, American settlers had “con- ‘ecived great danger . .. in regard that .. . magistrates, for ‘want of positive laws, in many cases, might proceed according to. , their discretions," and had therefore agreed “that some men should | be appointed to frame a body ef grounds of laws, in resemblance to. l'a Magna Charta, which being allowed by some of the ministers and | the general court, should be reccived for fundamental laws." i ' -— WIITMONI:, COLONIAL LAWS OF MASSACIITUSETTS 1630-1686, at 5 (1889).1t should hardly be surprising chat the cruel-and-unusual-punishment clause, like many of the other basic guarantees of the Bill of Rights, is woven of several strands and protects against more than a single evil. | Oo © function remains a vital office of the cruel-and-unusual punish- i 16/ ,ment clause today, although it certainly is not the exclusive : Ly : ; focus of the clause. As this Court pointed out in Weems v. ‘United States, 217 U. S. 349, 376 (1909), the Framers were cager to assure “that government by the people, instituted by the Constitution, would not imitate the conduct of arbitrary monarchs. it *.* -- i i The conjunction of the words “crucl" and “unusual” in the Eighth |; Amendment can hardly be regarded as accidental if one appreciates {" |, the relationship, within a basically popular and democratic gov- ernmental structure, of the dangers of lawlessness, irregularity, i as/ Te ota i t arbitrary selectivity, and cruelty. For, in such a structure, | ‘harsh and unsufferable criminal penalties are most likely to spring from devices that evade the rule of law or subvert the or- ~-- +4 ~- : | ainary protections afforded by its regularity and generality. ' - Duc Process of Law, too, insures aguinst the imposition of ; criminal sanctions that are not decreed in strict accordance with 'the regular course of law. | ' | “(T]he terms ‘due process of law’ | - « « come to us from the law of England, from which country our jurisprudence is to a great extent derived, and their re- quirement was there designed to secure the subject against the arbitrary action of the Crown and place him under the pro- tection of the law. They were deemed to be equivalent to ‘the law of the land.‘" Dent v. West Virginia, 129 U. S. 114, 123 (1888). — 8 ee ee eee ee ee eee 16/ See Wheeler, Toward a Theory of Limited Punishment: An Examination of the Eighth Amendment, 24 STAN L. REV. 838, 855-856 | (1972). F 17/ See Weens ve United States, 217 U. S. 359 (1909); Robinson Vv. California, 370 U. S. 660 (1962); Furman v. Georgia, 408 U. S. 238 (1972). And see note 15, supra. | 18/ See section I1(C), pp. 28-44, infra. las This relationship is developed in Brief for Petitioner, | Rikens v. California, 406 U. S. 613 (1972) [No. 68-5027], pp. 13- 1) 27, 39-56. - 24 - lian) r EE A 38/ 39/ manslaughter, or involuntary manslaughter in first degree murder cases, or because it failed to charge on assault with 40/ intent to rape in rape cases. Moreover, a jury may be charged on a lesser includec offense where there is no evidence to support such a charge, and a con- ; 4i/ viction for the lesser offense will be sustained on appeal. 38/ State _v. Merrick, 171 N.C. 788, 88 S.E. 50] (1916); State v. Robinson, 188 N.C. 784, 125 S.E, 617 (1924); State v. Manning, 25] N.C. 1, 110 S.E.2d 474 (1959). Cf. State v. Joe Freeman, 275 N.C. 662, 170 S.F.2d 461 (1969). 39/ State v. Wrenn, 279 N.C. 676, 185 S.E.2d 129 (1971). Cf. State v. Denny Freeman, 280 N.C. 622, 187 S.E.2d 59 (1972); State v. Joc Freeman, 275 N.C. 662, 170 S.E.2d 461, 465 (1969). 40/ State v. Williams, 185 N.C. 685, 116 S.F. 736 (1923). See also, State v. Green, 246 N.C. 717, 100 S.E.2d 52 (1957); State v. Roy, 233 N.C. 558, 64 S.E.2d 840 (1951); State v. Jones, 249 N.C. 134, 105 S.E.2d 513 (1958); State v. Webb, 20 N.C. App. 199, 200 S.E.2d 840 (1973). Cf. State v. Bryant, 280 N.C. 551, 187 S.E.2d 111, 116-118 (1972) (Bobbitt, CJ, dissenting). "An assault with intent to commit rape is a lesser degree of the felony and crime of rape. It is well settled with us that an indictment for rape includes an assault with intent to commit rape." State v. Green, 246 N.C. 717, 100 S.E.2d 52, 54 (1957). 41/ The Supreme Court of North Carolina has occasionally dis- approved of this practice, State v. Bryant, 280 N.C. 551, 187 S.E.2d 111, 114 (1972); State v. Allen, 279 N.C. 115, 18] a eee a ——— —— a oo a ee In State _v. Rentley, 223 N.C. 563, 27 S.E.2d 738, 740 (1943), the Court declared: "If we are to understand the appellant to base his denand for discharge merely on the fact that ihe 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, in- cluding the admission of the defendant, points to a graver crime. Such verdicts occur now and then . « « {and} [wJhen they do, although illogical or even incongrvous, since they are favorable to the accused, it is settled law that they will not be disturbed.” To insure that the jury is aware of the consequences of its decision in a capital case, the Supreme Court of North Carolina recently ruled that if "the jury is confused or uncertain as te vhplion ie ot oes permissive verdicts would result ina mandatory death sentence . . . sufficient compelling reason exists to justify . . . informing the jury of the consequences of their possible verdicts." State v. Britt, N.C.Sup.Ct., No. 36 (Robeson), decided May 15, 1974, [Appendix D, infra ] slip op. at 16, The Court also ruled that “[c)ounsel may, in his argument to the jury, in any cse, read or state to the jury a statute or other rule of law relevant to such case, including the statutory provision fixing the punishment for the offense charged . . . {He may] in his arguvent to the jury ... -« inform or remind the jury that the death penalty must be im- posed in the event it should return a verdict of guilty upon a capital charge." Id. at 17-18. This holding implements the power of the jury to avoid imposing the death penalty in a ee meee eee —eme es ~~ wen eee 2 ee ee eee ee oe . = +. syupathetic case, cither by convicting of a lesser included 43/ offense or by returning a verdict of not guilty. Thus, under North Carolina law, a double level of discretion may affect the jury's choice of a life or Geath verdict in a case where al] the evidence points to quilt of a capital offense or of nothing: the trial judge has @Giscretion to submit such lesser offenses, and the jury has discretion to commit for them, —_— - 43/ Wicker, "Christmas on the New Death Row," New York Times, Dec. 25, 1973, p. 18, col. 1: “Raleigh, N.C. Dec. 24 . . . In January, 1973, the North Carolina Supreme Court ruled that the Federal Supreme Court had made it unconsti- tutional for a jury to recommend mercy, hence life imprisomaent rather then death, for an “arbitrary number of those convicted of first- degree wurder, arson, rape or burglary; .. . Around here, some are still heaving sighs of relief at the case of a black man charged with breaking into a hovse and stealing about $10 worth of food. The house was occupied, the break-in occurred at night, so the offense was first-decree burglary. Perhaps influenced by the only alternative available, the jury acquitted him, thus sparing him Christmas on the new Death Row but raising the question how mandatory death sentences can be considered an improvement on cruel and unusual punishment," —- © C 4. Executive Clemency. The North Carolina Constitution provides that: [fT})he Governor may grant reprieves, Cc ommutations, and pardons, after conviction, for all offenses (cxcept in cases of impeachment), upon such corditions as he may think proper, subject to requlations prescribed by law relative to the manner of applying for pardons. Article III, G5 (G6). Governors of the Slate have, by the exercise of this cicmency prisoners. Between 1903 and 1963, the sentences of two hundred thirty-five (235) of three hundred fifty-cight (358) condemned prisoners were commuted. The chief executive has thereby commuted: 65.6 pereent of the death sentences imposed in the State over a ~~ cma e+ oo ow: Sixty year period. The Governor's discretion to spare the lives of condemned felons is absolute. The Constitution ‘reserves to the legislature the right to prescribe the “manner of applying for pardons" but leaves the grant or denial subject only to “such conditions as [the Governor) may think proper." Indeed, the Court of Appeals has said with regard to the analogous executive power to grant paroles (a power originally conferred upon the Governor by Article III) that: {iJn a matter which historically, in this State at least, has been considered a function of the executive branch and which by its nature involves a large number of intangibles, guide lines are neither necessary nor desirable. Jernigan v. State, 10 N.C. App. 562, 179 S.E.2da 788, 792 (1971). — s Ale 841-3403 (Sap Ann. 6794.01 (1965); Ga. Code Ann. §26-20 } O1 (1969); Ky. >» 1969); Fla. St ate Rev Stat. Ann. 6435.090 (1969); La. Rev. Stat. Ann. G614:42 (1950) and La. Code of Crim. Proc., Art. 817 (1971): Md. Code Ann., art 27, 6461 (Repl. vol. 1967); Miss Code Ann. 62358 (Rec VYol. 1956); Vernon's Ann. Mo. Stat. 6559, 260 (1953); Nev. E0200. 363 vr f 1969); Oxia. Stat. Ann., tit. 21, 61115 (Supp. 1970); S.C. Code Ann. 616-72 (1962); Tenn. Code Ann. 639-3702 (1955); OTP. Stat. , 200.400 (1968); N.C. Gen. Stat. §14-2) (Repl. Vol. Vernon's Tex. Pen. Code Ann., art. 1189 (1961); Va. Code Amn. §18.1-44 (Repl. Vol. 1960). 17/ Wo. 74, Ga. 1973 Sess. Laws, at 164-165, amending Ga. Code 627-2534.1. ° Me/ North Carolina's new capital punishment legislation imposes the death penalty for “first degree rape," defined as rape accomplished through use of a deadly weapon or attended by sixteen years of age and the victim is “a virtuous female under the ave of twelve years." N.C. Gen. Stat. §14-21, as amended by See. 2, Chap. 1201, 1973 N.C. Sess. Laws. jd 9/ Stit ‘scrious bodily injury" or a rape wher@;the defendant is over child ev. Selman, La. Sup. Ct. No. 54376 (June 10, 1974) (the time to seek rehearing has not expired as of the date of the filing of this petition for certiorari. See La. Sup. Rule IX, 6 1). Ct.. ——— ee 0 ee - ae + of an adult woman, while two other States make certain rapes of children capital. Bleven of the sixteen States that punished rape with death before Purman have now abandoned the death 21/ penalty entirely for this crime. And the North Carolina General Assembly itself, acting after the affirmance of petitioner's death sentence, has ceased to use death to punish the wide range of rape offenses made capital by the State's Supreme Court in Waddell. -_---— — 20/ The new Florida statute imposes the death penalt for rape LN I i y } if the victim is under 11 years old and the defendant is 17 or older. Fla. Stat. 6921.141 (1972). ‘the new Yennessee statutc imposes the death penalty for rape, if the victim is under twelve years of age. Tenn. Code 639-2402, as amended by Pub. Chap. 462, “Wem. Luws 1974. 21f Arkansas, Yentuchy, Mississippi, levada, Oklahoma, and Tosxas bave enacted new Geath penalty slatutes that do not make rape a capital crime. Alabuma, Missouri, Maryland, South Carolina, and Virginia have not enacted any death penalty legislation after Furman. ee --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2047%3A1. Public record. Not legal advice.