STATE of North Carolina
v.
Ernest Franzille ARMSTRONG.
No. 10.
Supreme Court of North Carolina.
April 14, 1975.*896 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-appellant.
HUSKINS, Justice:
The defense in this case is based on consent. Defendant contends the evidence relied upon by the State to show resistance on 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, relative to Mrs. Massey's conclusion that resistance on her part would be useless. This constitutes the basis for defendant's first assignment of error.
The court charged on this point as follows:
"Now, I charge you for you to find the defendant guilty of rape the State must prove three things beyond a reasonable doubt:
First, that the defendant had sexual intercourse with Roena Massey.
Second: That the defendant used or threatened to use force sufficient to overcome any resistance she might make. Now, in reference to force the court instructs you that force necessary to constitute rape need not be actual physical force. Fear, fright or coercion may take the place of force. While consent by the female, Roena Massey, is a complete defense 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 personal violence is void. Even though a man lays no hand on a woman yet if by an array of physical force he so overpowers her mind that she dares not resist or she ceases resistance through fear of great harm, the consummation of the unlawful intercourse by the man is as a matter of law rape.
The third point that must be proven to you by the evidence and beyond a reasonable doubt is that Roena Massey did not consent and it was against her will."
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.E.2d 917 (1972). Fear, fright or coercion may take the place of actual physical force. State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969). Although consent by the female is a complete 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.E.2d 826 (1965).
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 over my mouth.. . . I sure was frightened. . . . He was holding me by my neck . . . I began to give up because I didn't know where he was going to kill me or what he *897 was going to do to me and I was there alone in that house by myself. . . . I couldn't get away from him because he had me around the neck like this choking me and his hand over my mouth there weren't no way for me to. . . . He just kept pulling on me and seesawing me and zigzagging 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 struggles ceased when she realized she was helpless to protect herself and was in fear of death or serious bodily harm at the hands of a thirty-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 S.E.2d 225 (1969). Defendant's first assignment of error is overruled.
Failure of the court to set aside the verdict and arrest judgment constitutes defendant's second assignment of error. We find no merit in this assignment for the reasons stated below.
A motion to set aside the verdict as being contrary to the weight of the evidence is addressed to the discretion of the trial judge. State v. Arnold, 284 N.C. 41, 199 S.E.2d 423 (1973); State v. Henderson, 276 N.C. 430, 173 S.E.2d 291 (1970). The evidence amply supports the verdict. No abuse of discretion is shown.
A motion in arrest of judgment is made after verdict, designed to prevent entry of judgment, and is based upon the insufficiency of the indictment or some other fatal defect appearing on the face of the record. State v. McCollum, 216 N.C. 737, 6 S.E.2d 503 (1940). "In a criminal prosecution, however, judgment may be arrested whenand only whensome fatal error or defect appears on the face of the record proper." State v. Kirby, 276 N.C. 123, 171 S.E.2d 416 (1970); State v. Higgins, 266 N.C. 589, 146 S.E.2d 681 (1966).
The record proper in criminal cases ordinarily consists of (1) the organization 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, 183 S.E.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.
Finally, defendant contends that imposition of the death penalty is legally unauthorized and constitutes cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments to the Constitution of the United States. This contention has heretofore been considered and determined to be without merit in various cases, including State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974); State v. Dillard, 285 N.C. 72, 203 S.E.2d 6 (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). Defendant's third assignment based on this contention is overruled.
It should be noted that all of the evidence in this case reveals a completed act of sexual intercourse. The only dispute between the State and the defendant is whether the act was accomplished by consent or by force. Under those circumstances 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, 283 N.C. 383, 196 S.E.2d 212 (1973); State v. Bryant, *898 280 N.C. 551, 187 S.E.2d 111 (1972). Submission of the lesser included offenses, however, was error favorable to the defendant and affords him no grounds for relief.
We have carefully examined the entire record and conclude that defendant received 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 imprisonment for the reasons stated in her dissenting opinion in State v. Williams, 286 N.C. 422, 434, 212 S.E.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 S.E.2d 113 (1975).
EXUM, Justice, dissents from that portion of the majority opinion which affirms the death sentence and votes to remand this case in order that a sentence of life imprisonment can be imposed for the reasons stated in his dissenting opinion in State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975).