State v. Burell

113 S.E.2d 16 (1960)

252 N.C. 115

STATE v. Robert Franklin BURELL.

No. 75.

Supreme Court of North Carolina.

March 2, 1960.

*17 Atty. Gen. Malcolm B. Seawell and Asst. Atty. Gen. Harry W. McGalliard for the State.

Charles L. Abernethy, Jr., New Bern, for defendant, appellant.

BOBBITT, Justice.

While defendant assigns as error the overruling of his general motions for judgment of nonsuit, he does not contend that the case should have been dismissed in its entirety but that the evidence was insufficient to support a conviction for rape. Upon this premise, defendant asserts that, although he was not convicted of rape, the submission of the case as to rape constitutes prejudicial error.

The testimony of the prosecutrix is to the effect that defendant, forcibly and against her will, penetrated her sexual organ "half-way" with his sexual organ; that when he took his hand from her mouth, she screamed; and that he then relaxed to such extent that she was able to get from under him and run to a neighbor's house. This evidence was sufficient as to penetration. State v. Jones, 249 N.C. 134, 105 S.E.2d 513, and cases cited. When considered in the light most favorable to the State, the evidence was sufficient to support a conviction for rape. State v. Green, 246 N.C. 717, 100 S.E.2d 52, and cases cited; G.S. § 14-23.

Defendant's counsel's real contention is that the testimony of the prosecutrix is contrary to reason and experience and therefore should be rejected as unworthy of belief. Upon the printed record, there appears to be much force to this contention. Even so, we are mindful of the fact that the jury observed the witnesses as they gave their testimony; and the probative *18 value of the testimony was solely for determination by the jury. Moreover, discrepancies and contradictions in the testimony of the prosecutrix were matters for the jury and not for the court. State v. Bryant, 250 N.C. 113, 117, 108 S.E.2d 128, and cases cited.

Defendant testified in his own behalf. Suffice to say, his testimony was to the effect that he did not attempt in any manner to have sexual relations with the prosecutrix but that she ran when he struck her under circumstances that need not be set forth in detail. In addition to his testimony, defendant offered three witnesses (officers in the Marine Corps) who testified that defendant's general reputation was excellent.

Defendant assigns as error the failure of the court to instruct the jury as to the significance of the character evidence, namely, the testimony of said three officers. It appears that the trial judge, in reviewing the evidence, stated the substance of the testimony of these witnesses, but gave no instruction relevant to its legal significance. No request was made that he do so.

When a defendant, who has testified in his own behalf, offers evidence as to his good general reputation, and the court undertakes to instruct the jury as to the legal significance of such character evidence and how it should be considered by the jury, erroneous or incomplete instructions have been held sufficient ground for a new trial. State v. Wortham, 240 N.C. 132, 81 S.E.2d 254; State v. Bridgers, 233 N.C. 577, 64 S.E.2d 867. However, since evidence of the good character of a defendant on trial for rape is a subordinate and not a substantive feature of the trial, the failure of the trial judge, in the absence of a request therefor, to give any instruction relative to the significance of character evidence, is not prejudicial error. State v. Glatly, 230 N.C. 177, 52 S.E.2d 277; State v. Scoggins, 225 N.C. 71, 33 S.E.2d 473; State v. Sims, 213 N.C. 590, 197 S.E. 176. It is noted that in State v. Sims, supra, the defendant was tried and convicted of murder in the first degree.

We have considered each of defendant's remaining assignments of error. Suffice to say, none discloses prejudicial error or requires particular discussion. In short, after a full and careful consideration of the record, we find no error of law that would afford sufficient basis for awarding a new trial.

No error.