STATE of North Carolina
v.
Raymond Eugene DULL.
No. 98.
Supreme Court of North Carolina.
December 17, 1975.*346 Atty. Gen. Rufus L. Edmisten by Deputy Atty. Gen. Millard R. Rich, Jr., and Associate Atty. James Wallace, Jr., Raleigh, for the State.
Jay F. Frank, Statesville, for defendant appellant.
COPELAND, Justice.
In the first two assignments of error the defendant contends that the court erred in denying his motion for nonsuit made at the close of the State's case and at the close of all the evidence as to both rape and kidnapping. In essence he says the State failed to prove the essential element of procuring submission by the use of a deadly weapon as to the rape charge, or the use of force in the kidnapping charge.
The defendant was tried and convicted for first-degree rape under the provisions of G.S. 14-21(a)(2) (Chapter 1201, Session Laws of 1973, effective 8 April 1974), which reads as follows:
"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."
Rape is defined as the carnal knowledge of a female person by force and against her will. State v. Crawford, 260 N.C. 548, 133 S.E.2d 232 (1963); State v. Thompson, 227 N.C. 19, 40 S.E.2d 620 (1946); 6 Strong, N.C.Index 2d, Rape, § 1; G.S. 14-21.
*347 The distinguishing features between the former law and that provided in G.S. 14-21 are that rape is now divided into two degrees, and that G.S. 14-21(a)(2) now requires that the "force" be such that "the rape victim had her resistance overcome or her submission procured by the use of a deadly weapon, or . . . ." Under the former law, the "force" that was necessary to constitute an offense did not need to be actual physical force. Constructive force was sufficient, and the female submission under fear or duress took the place of actual physical force. State v. Thompson, supra; State v. Johnson, 226 N.C. 671, 40 S.E.2d 113 (1946). This is the same "force" now required to convict for second-degree rape. G.S. 14-21(b).
Under the old law, where all the evidence tended to show that the defendant had sexual intercourse with the prosecutrix without her consent and she submitted when she was helpless to protect herself because the submission was induced by fear of death or serious bodily harm, then motion for nonsuit was held to be properly denied. State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969). "A woman who consents out of fear of personal violence does not consent at all. Even though no physical force is actually used, if the potential force is shown by the man to the woman so as to paralyze by fear her will to resist, or if she ceased resistance through fear of great harm, the consummation of unlawful intercourse by the man is rape." 65 Am.Jur.2d, Rape, § 11 at 767.
In our case there is ample and credible evidence that the defendant got in the automobile and grabbed the prosecutrix by the hair with his left hand and held the open knife to her throat with his right hand. She was afraid. The defendant told her to do what he said and she would not get hurt. The engine of the automobile was already running and, at his direction, she drove the vehicle out of the parking lot.
She testified: "When I was parked on the side of the road, he grabbed me and ripped my blouseripped off my bra, and I was trying to resist him. He grabbed me by the throat and held me up against the driver's side of the window and told me if I didn't do what he said, that I wouldn't live to be nineteen." The defendant was in possession of a knife and threatened her with it, telling her that if she did not cooperate, it would lead to her death. The defendant said or did nothing prior to having sexual intercourse with her to indicate that he no longer had the knife in his possession or that he no longer intended to use the knife if she did not cooperate. All of this showed that the prosecutrix was in a situation where she feared for her life and the slightest objection might very well have been fatal. After the alleged rape, the defendant required her to get out of the car and then discussed with her, her own murder. By her pleas she was able to save her life. The knife itself was later found in the living quarters of the defendant, who identified it as looking like his knife.
If the evidence of the State as to the rape charge is to be believed, it is clear that the requirements of G.S. 14-21(a)(2) were met and that the submission of the prosecutrix was procured by the use of the open knife that the defendant placed at her throat when he first encountered her. The law does not require a vain thing and certainly it does not require that the defendant must continue to display the deadly weapon in a threatening manner until the moment of the rape. The defendant told the prosecutrix she would not live to be nineteen if she did not cooperate with him. She had every reason to believe that he would carry out his threat to kill her. Once the defendant had exhibited the knife and threatened the life of the prosecutrix with it, the knife continued in use as long as it was accessible to him.
As to the evidence on the charge of kidnapping, the element of force was shown not only by the use of the knife, but also by other physical force that continued from the moment defendant entered the victim's car until he returned her to the Mall.
*348 There is a wealth of authority in this State on the subject of nonsuit. Generally speaking, in a motion for nonsuit the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference therefrom. State v. Overman, 269 N.C. 453, 153 S.E.2d 44 (1967); State v. Cade, 268 N.C. 438, 150 S.E.2d 756 (1966); State v. Spears, 268 N.C. 303, 150 S.E.2d 499 (1966); State v. Bridgers, 267 N.C. 121, 147 S.E.2d 555 (1966). There was ample evidence to submit this case to the jury on first-degree rape and kidnapping and these assignments are overruled.
Next, the defendant argues that the court was in error in failing to give a clear definition of second-degree rape, and that the court confused the jury by mentioning the use of a deadly weapon in its definition of second-degree rape.
The particular instruction that the defendant complains about is as follows:
"Second-degree rape differs from first-degree rape in that it is not necessary for the State to prove that the defendant was more than sixteen years of age, or that he overcame Marcia Barnes' resistance or procured her submission by the use of a deadly weapon. So I charge that if you find from the evidence beyond a reasonable doubt that on or about January 11, 1975, in Iredell County, Raymond Eugene Dull, Jr. did by the use of force pulling her head back by her hair, threatening her with a knife, choking her, using his hands on her bodydid forcibly have sexual intercourse with Marcia Barnes; that he did so without her consent and against her will, it would be your duty to return a verdict of guilty of second-degree rape; . . ." (Emphasis supplied.)
The defendant maintains that the trial judge by mentioning the use of a knife while charging the jury on second-degree rape confused the jury as to the true elements of second-degree rape. Defendant contends that he may well have been found guilty of second-degree rape if the judge had charged more clearly. However, it seems clear to us that if the jury was led to believe that the use of the knife was an element of second-degree rape, then this would have been beneficial to the defendant and he could not complain. At any rate, the jury by its verdict found that a deadly weapon was used and that the rape was accomplished when the defendant overcame the resistance of the prosecutrix by the use of the knife. Moreover, after the jury had deliberated for some time, it returned to the courtroom and requested further instructions as to first-degree rape. The court then gave a proper charge as to first-degree rape and also re-instructed the jury on second-degree rape and particularly told them it was not necessary that her submission be secured by the use of a deadly weapon in second-degree rape. If there was any confusion in the jury's mind, this certainly cleared it up.
Assuming arguendo that there was technical error, we feel that it was harmless error beyond a reasonable doubt. The evidence at the trial overwhelmingly pointed to defendant's guilt. Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
Next, the defendant contends that the court erred in denying the motions to set aside the verdict as being against the greater weight of the evidence, for judgment notwithstanding the verdict, and for a new trial.
A motion to set aside the verdict as being against the greater weight of the evidence is addressed to the discretion of the trial court, and the court's refusal to grant the motion is not reviewable on appeal. State v. Bridgers, supra; State v. Mitchner, 256 N.C. 620, 124 S.E.2d 831 (1962); State v. Downey, 253 N.C. 348, 117 S.E.2d 39 (1960); State v. Reddick, 222 N.C. 520, 23 S.E.2d 909 (1943). See also 3 Strong N.C.Index 2d, Criminal Law, § 132. A motion for a new trial does not properly *349 present the question of the sufficiency of the evidence to justify the submission of the case to the jury. State v. Gaston, 236 N.C. 499, 73 S.E.2d 311 (1952); State v. Caper, 215 N.C. 670, 2 S.E.2d 864 (1939); 3 Strong, N.C.Index 2d, supra. This is more properly raised by a motion for nonsuit, which has been discussed earlier in this opinion. 3 Strong, N.C.Index 2d, supra. Certainly the trial court did not abuse its discretion for the State's evidence was overpowering. The assignment is overruled.
Finally, defendant contends the court erred in sentencing him to death, saying this was cruel and unusual punishment.
Our Court has consistently rejected this argument. No new issue has been raised here. We do not deem it necessary to set forth again the reasoning of these cases. State v. Robbins, 287 N.C. 483, 214 S.E.2d 756 (1975); State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975); State v. Armstrong, 287 N.C. 60, 212 S.E.2d 894 (1975); State v. Vick, 287 N.C. 37, 213 S.E.2d 335 (1975); State v. Stegmann, 286 N.C. 638, 213 S.E.2d 262 (1975); State v. Honeycutt, 285 N.C. 174, 203 S.E.2d 844 (1974); State v. Dillard, 285 N.C. 72, 203 S.E.2d 6 (1974); State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974); State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974); State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974); State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973). The assignment is overruled.
In our careful review of this entire record we find
No error.