State v. Mullis

64 S.E.2d 656 (1951)

233 N.C. 542

STATE v. MULLIS.

No. 365.

Supreme Court of North Carolina.

May 2, 1951.

*657 Harry McMullan, Atty. Gen., and Ralph Moody, Asst. Atty. Gen., for the State.

J. G. Lewis and R. A. Hedrick, Statesville, for defendant, appellant.

JOHNSON, Justice.

The defendant places chief emphasis on a group of exceptions to the charge of the court,all relating to the action of the court in giving, and in repeating, the State's contention that the prosecuting witness, Mary Emily Mullis, was a woman of subnormal mind. The defendant made no objection in the court below. The challenge comes for the first time on appeal. The defendant takes the position that the contention as given may be held for error notwithstanding the absence of objection in the court below, for that: (1) the contention is unsupported by testimony; and (2) it relates to a matter material to the issue. He recites and relies upon the decisions in State v. Buchanan, 216 N.C. 34, 3 S.E.2d 273, and State v. Wyont, 218 N.C. 505, 11 S.E.2d 473. The exceptions are without merit, and the authorities cited by the defendant are distinguishable.

An examination of the charge indicates that the court did not rest the challenged contention on any assumption that it was supported by testimony. The contention as given was expressly based upon the demeanor and appearance of the witness while upon the witness stand and in court. That this is so is made clear by the following preliminary statement of the trial judge: "The State insists and contends * * * that from her demeanor, her actions, appearance, and the way and manner in which she testified, that you should find that she was a woman not of normal mental faculties but had a backward and subnormal mind; * * *."

Here, the demeanor of the witness, as is always the case, was in evidence. Wigmore on Evidence, 3d Ed., Vol. III, Sec. 946, p. 498. See also Herndon v. Southern Railroad Co., 162 N.C. 317, bot. page 318, 78 S.E. 287; Ferebee v. Norfolk Southern Railroad Co., 167 N.C. 290, top page 296, 83 S.E. 360. Accordingly, the Solicitor had the right, within reasonable limits, to draw inferences from and comment on the demeanor of the prosecuting witness, Mary Emily Mullis. Lamborn & Co. v. Hollingsworth & Hatch, 195 N.C. 350, page 352, 142 S.E. 19. And this being so, it was within the province of the trial court to embody in its summation of contentions such relevant inferences as were reasonably deducible from the demeanor of the witness.

A study of the charge as a whole indicates that the contention of the State as to the mental condition of the prosecuting witness was submitted to the jury, not as a controlling, material phase of the case, but rather as subordinate, explanatory features: (1) as tending to show why the prosecuting witness did not make outcry; (2) as tending to corroborate her version of the assault, the contention being that, while she had mind and memory enough to relate the details of the assault as it occurred, she was without the necessary capacity and cunning to have fabricated a series of events as narrated by her; and (3) as tending to support the State's theory that the defendant, knowing of the weak mental condition of the prosecuting witness and believing that by reason thereof he could more easily overcome her will, went to her home with the fixed purpose of getting her father drunk and then having carnal knowledge of her.

*658 There is nothing in the record indicating that the demeanor of the witness did not tend to support the contention as given. The record is silent on this point, and silence supports the presumption that the procedure in the court below was regular and free of error. Claypoole v. McIntosh, 182 N.C. 109, 108 S.E. 433; Globe Indemnity Co. v. Sylva Tanning Co., 187 N.C. 190, 121 S.E. 468. It was the defendant's right to have challenged the contention, State v. Baldwin, 184 N.C. 789, 114 S.E. 837, and requested a counter contention on his behalf. State v. Sinodis, 189 N.C. 565, 127 S.E. 601. His exceptions, first raised on appeal, may not be sustained. State v. Britt, 225 N.C. 364, 34 S.E.2d 408; State v. Wells, 221 N.C. 144, 19 S.E.2d 243.

We have examined the rest of the defendant's exceptions, including the challenge to the refusal of the court to dismiss the case as of nonsuit, and find them without merit. The evidence was sufficient to take the case to the jury.

In the trial below we find

No error.