Opinion · Supreme Court of North Carolina

State v. . Smith

61 N.C. 302

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1867-06-05
Topic: general

Reade, J. Under our statute it is a felony punishable with death to “ unlawfully and carnally know and abuse any female child under the age of ten years.” Of this crime the prisoner has been convicted, and the enormity of the crime has only made us the more careful to see that his conviction was proper. There was evidence offered'tending to show that the child, upon whom the crime was alleged to have been committed, was under ten years of age. There was no objection to this evidence until after the jury returned their verdict. The prisoner then excepted to the evidence.

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Cited by: 3 opinions

STATEv. SMITH,61 N.C. 302(1867)

STATE v. FRANKLIN SMITH.

Supreme Court of North Carolina

(June Term, 1867.)

1. After verdict the defendant cannot object that evidence was improperly admitted, if he did not except when it was introduced.

2. The opinion of medical experts is admissible as to the age of a child upon whom the crime of "carnally knowing," etc., under the statute, Rev. Code, ch. 34, sec. 5, is charged.

3. An indictment under that statute need not charge that the prisonerravishedthe child.

INDICTMENT under the statute, Rev. Code, ch. 34, sec. 5, for carnally knowing and abusing a female child under ten years of age, tried beforeMeares, J., at April Term, 1867, of the Criminal Court of NEW HANOVER.

The jury found a verdict of guilty; motion in arrest of judgment; motion overruled; rule for a new trial; rule discharged; judgment of death, and appeal.

The facts sufficiently appear in the opinion of the Court.

Attorney-General for the State.No counsel for defendant.

READE, J.

Under our statute it is a felony punishable with death to "unlawfully and carnally know and abuse any female child under the age of ten years." Of this crime the prisoner has been convicted, and the enormity of the crime has only made us the more careful to see that his conviction was proper.

There was evidence offered tending to show that the child, upon whom the crime was alleged to have been committed, was under ten years of age. There was no objection to this evidence until after the jury returned their verdict. The prisoner then excepted to the evidence. The exception came too late, and could not avail the prisoner if it were clear that the exception would have been sustained if taken in apt time. But the exception could not be sustained if it had been taken in apt (303) time. It seems that the exact age of the child was not known,Page 243and two medical experts were examined and gave theiropinionthat she was under ten years of age. We think that this was proper.

The prisoner asked his Honor to charge the jury that there wasnoevidence of sufficient penetration to constitute the crime.

His Honor could not have charged that there wasnoevidence of penetration, for there were the declarations to that effect of the child herself, and the opinions and statement of facts by two experts; and his Honor charged the jury thatactualpenetration was necessary to constitute the crime, but that no particular depth of penetration was necessary.

There are no grounds for avenire de novo.

The prisoner moved in arrest of judgment, because the indictment did not charge that the prisoner didravishthe child. It was not necessary so to charge. If the consent of the child had been proved, it would have availed the prisoner nothing. The offense consists not inravishing, but incarnally knowingandabusingthe child. There is no ground to arrest the judgment.

There is no error in the record.

Let this opinion be certified to the Criminal Court of Law of New Hanover, that said court may proceed to judgment and execution according to law.

PER CURIAM. There is no error.Cited: S. v. Ballard,79 N.C. 629.

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