STATE
v.
Sherwood BAREFOOT.
No. 220.
Supreme Court of North Carolina.
March 23, 1955.*427 Doffermyre & Stewart, Everette L. Doffermyre, Dunn, for defendant, appellant.
Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., for the State.
HIGGINS, Justice.
During the progress of the trial exceptions to the introduction of evidence and to portions of the judge's charge were taken. These exceptions are not stressed in the brief and are not stated as questions involved in the appeal. Examination of the record discloses they are without merit. The exception based on the court's refusal to direct a verdict of not guilty is also without merit. The evidence was amply sufficient to take the case to the jury.
The defendant's counsel, both in the brief and in the oral argument, contend the plea of former jeopardy should have been sustained and the defendant discharged, or at least that the issue tendered with regard to the plea should have been submitted to the jury, and the court's failure to do so entitles the defendant to a new trial.
The indictment for rape upon which the defendant was tried and acquitted was drawn under G.S. § 14-21. The indictment in this case was drawn under G.S. § 14-26. The two offenses are separate and distinct. The constituent elements are not identical. If the victim in a prosecution for rape is over 12 years of age, the intercourse must be by force and against her will. Her former chastity is immaterial. Her consent is a complete defense. In a prosecution for carnally knowing and abusing a female child over 12 and under 16 years of age, her former chastity is a material part of the charge and must be proved. Her consent is not a defense. The crimes are different. The prosecution for one is not a bar to a prosecution for the other, even though they are related in character and grow out of one transaction. State v. Hall, 214 N.C. 639, 200 S.E. 375. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. State v. Dills, 210 N.C. 178, 185 S.E. 677; State v. Nash, 86 N.C. 650; State v. Gibson, 170 N.C. 697, 86 S.E. 774. "`To support a plea of former acquittal, it is not sufficient that the two prosecutions should grow out of the same transaction, but they must be for the same offense; the same, both in fact and in law.'" State v. Malpass, 189 N.C. 349, 127 S.E. 248, 252; State v. Taylor, 133 N.C. 755, 46 S.E. 5; State v. Williams, 94 N.C. 891. If two statutes are violated even by a single act and each offense "requires proof of an additional act which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." State v. Stevens, 114 N.C. 873, 19 S.E. 861, 862; State v. Robinson, 116 N.C. 1046, *428 21 S.E. 701. The rationale of the rule seems to be: If the facts alleged in the second indictment when offered in evidence, would be sufficient to sustain a conviction under the first indictment, jeopardy attaches, otherwise it does not. State v. Hicks, 233 N.C. 511, 64 S.E.2d 871.
From a comparison of the two indictments it is plain the facts alleged in the second bill, if offered in evidence, are insufficient to sustain a conviction of the charge of rape. It follows the defendant's plea of former acquittal is not good. This result is apparent as a matter of law. When no issues of fact are involved as to the identity of the parties or of the offenses, the question of jeopardy is to be decided by the court. State v. Dills, supra; State v. Cale, 150 N.C. 805, 63 S.E. 958. The trial judge was correct in so holding. The cases of State v. Bell, 205 N.C. 225, 171 S.E. 50, and State v. Clemmons, 207 N.C. 276, 176 S.E. 760, are factually different and are not applicable.
More difficult of disposition are the questions of law presented in the appeal by the defendant's exceptions to the solicitor's argument. The Office of Solicitor is created by the Constitution of the State. It is an office of great power and grave responsibility. The ideal would be for the office always to be filled by a man of judicial poise and of unruffled disposition. Few can thus qualify. The writer knows from personal experience that prosecutors are human and that they often react quickly and sometimes vigorously to the needling of adroit defense counsel. That the trial of a case in the Superior Court often develops into a spirited contest is recognized by this Court. "Counsel must be allowed wide latitude in the argument of hotly contested cases." State v. Bowen, 230 N.C. 710, 55 S.E.2d 466, 467. "It is the undoubted right of counsel to argue every phase of the case supported by the evidence without fear or favor, and to deduce from the evidence offered all reasonable inferences which may flow therefrom." Lamborn & Co. v. Hollingsworth & Hatch, 195 N.C. 350, 142 S.E. 19, 21.
In the argument to the jury, the solicitor said: "In my opinion we are not dealing with an ordinary boy of 18 years of age. While he is underdeveloped in size, he is overdeveloped in passion." Objection to the argument was overruled. We think the statement was within the permissible rule of legitimate argument. The prosecuting witness had detailed in evidence how the defendant persisted in his efforts to have intercourse with her and finally pulled her from the front to the back seat of the car. From the point of view of the State, the evidence seemed to warrant the argument.
After the trial judge had overruled the objection to the foregoing argument, the solicitor made the following proposition, presumably to defense counsel: "If you will permit the reporter to take my entire argument, I will agree to let your objection come at the end of every sentence. Let it be shown by the reporter."
By the court: "You may take the argument."
The agreement did not in any wise relieve the trial judge of his duty, at all times, to see that the argument, both of counsel for the defendant and the solicitor for the State, remained within proper bounds. We do not approve the type of agreement entered into, because counsel should make timely objections to the court, and the court should pass on the objections as they arise. The record shows objections were entered to the following arguments:
"Mr. Doffermyre in his zeal for a guilty client, I expect would object to this trial even being continued and if he had been asked about it he would have objected to the trial being started and if he had been asked further about it he would have said, `Forget the whole thing and let it go,' but that is not what I am interested in and that is not what you are interested in, I don't believe, as citizens of this County. That is certainly not the purpose for which the criminal courts are held, To Go To Defense *429 Counsel And Ask Him How To Run Or What To Do About Crime In This County. He Is Not Interested In Crime. He Is Interested In Preventing The Crime From Coming Out And He Is Here To Prevent Justice Being Done If He Can In So Far As It Affects His Client, and if justice points an accusing finger and takes hold of the shoulder and neck of this man and says, `You have committed a crime against society,' then, I am sure counsel would object, but thank the Lord the courts of this county are run on a different principle, and the law in this county is in the saddle as long as the people in this county run it and Not Counsel For The Defendant and when the law gets out of the saddle you just as well close up your courthouse and schools and churches, and say, `Take it over and run rampant over the people and the children of this county.'" * * *
"He said the Solicitor was not satisfied with the verdict in the other case. No, I was not, and won't be satisfied with it from now on, and thank God we had some way to indict and convict this defendant, some lawful manner and bring him to justice as he ought to be brought to justice, when there sits the child he has ruined and him to sit up here, Mr. Big Man, and walk around the courtroom with that air of irresponsibility, `let her suffer,' he says; `let her suffer,' by his conduct and `get me if you can, catch me if you can.'"
"Try the man who is charged here. The man who has caused all of this. The man who has ruined that child's life, and never again will she be able to raise her head and look the world straight in the face, because she has been carried off down there and debauched and ruined, contrary to her will and desire."
The defendant's objections to the portions of the solicitor's argument above quoted are made upon two grounds: (1) The remarks amount to a comment on the fact the defendant did not go upon the stand to testify; (2) the argument so far transgressed the rules of fair comment and legitimate debate as to amount to a prejudicial invasion of the defendant's rights.
It does not appear that the solicitor's remarks amount to comment upon the defendant's failure to testify. Of course, any comment to that effect would be such error as would require a new trial. However, when reasonably interpreted, the solicitor's remarks do not amount to such comment.
It is rather apparent from the record that the solicitor had been prodded during the progress of the trial and his reaction, as shown by his argument, was rather vigorous. To what extent he was provoked, we do not know, for the record does not disclose the argument of defense counsel. Even though he may, and probably did have considerable provocation, it is regrettable that the State's prosecutor permitted his zeal to carry him quite so far in his argument. But, after all, a conscientious judge heard both sides and refused to intervene. As was said in State v. Bowen, supra, "Counsel must be allowed wide latitude in the argument * * *. But what is an abuse of this privilege must ordinarily be left to the sound discretion of the trial judge, and we `will not review his discretion, unless the impropriety of counsel was gross and well calculated to prejudice the jury'".
In the case of State v. Bryan, 89 N.C. 531, this Court said: "The manner of conducting the argument of counsel, the language employed, the temper and tone allowed, must be left largely to the discretion of the presiding judge. He sees what is done, and hears what is said. He is cognizant of all the surrounding circumstances, and is a better judge of the latitude that ought to be allowed to counsel in the argument of any particular case. It is only in extreme cases of the abuse of the privilege *430 of counsel, and when this is not checked by the court, and the jury is not properly cautioned, this Court can intervene and grant a new trial." Citing State v. Suggs, 89 N.C. 527; State v. Underwood, 77 N.C. 502.
In view of the evidence of this case, it is difficult to see how the solicitor's argument could have influenced the verdict. Prejudicial error, therefore, is not disclosed by the record.
No error.
BARNHILL, C. J., took no part in the consideration or decision of this case.
BOBBITT, Justice (concurring).
Where the Solicitor, on the basis of defendant's personal appearance in the courtroom, characterizes defendant in abusive terms, a distinction may be drawn between a case where the defendant testified and a case where he did not testify. Compare, State v. Bowen, 230 N.C. 710, 55 S.E.2d 466, and State v. Tucker, 190 N.C. 708, 130 S.E. 720. In this case, the defendant offered no evidence.
There is one portion of the Solicitor's argument which, when isolated and subjected to close scrutiny, poses a serious question, viz.:
"(For) him to sit up here, Mr. Big Man, and walk around the courtroom with that air of irresponsibility, `Let her suffer,' he says; `Let her suffer,' by his conduct, and `Get me if you can, catch me if you can.'"
When I consider now the quoted statement, I realize that it might convey the idea that the defendant, unwilling to testify as a witness, had declared his attitude more loudly by his courtroom appearance and behavior than by any words he might have uttered.
Even so, I concur in the decision of the court.
Except in death cases, exception to improper remarks of counsel during the argument must be taken before verdict. State v. Smith, 240 N.C. 631, 83 S.E.2d 656.
The record shows that only one objection was interposed. The remarks to which this objection was addressed, as pointed out in the Court's opinion, had their roots in the evidence and were within the bounds of permissible argument.
After this incident occurred, the Solicitor, presumably to avoid annoyance by further interruptions, stated to defense counsel that the reporter might take his entire argument and the transcript thereof might show an objection at the end of each sentence. The trial judge directed that the reporter take the argument.
The record does not disclose that defendant addressed the court as to any remarks thereafter made by the Solicitor. Having offered no evidence, defense counsel had the last speech to the jury; and it may be that he felt fully capable of answering the Solicitor's argument.
Neither the Solicitor nor the trial judge had authority to set aside by agreement the rules of procedure applicable to the necessity for interposing timely objection to arguments of counsel challenged as improper. If the circumstances were such as to give assurance to defendant's counsel that he need not interrupt the Solicitor during his further remarks, it was his duty to call the court's attention to portions thereof deemed improper at the conclusion of the Solicitor's argument. In any event, it was his duty to do so at some time before the trial judge completed his charge and submitted the case to the jury.
Our rule permitting an exception to the court's charge to be entered for the first time when appellant makes out his case on appeal, based upon consideration of "the cold record," should not be extended to permit an appellant to pursue the same course as to an alleged objectionable remark by counsel.