State v. Carthens

199 S.E.2d 456 (1973)

284 N.C. 111

STATE of North Carolina v. Leroy CARTHENS.

No. 18.

Supreme Court of North Carolina.

October 10, 1973.

*458 Atty. Gen. Robert Morgan and Associate Atty. Howard A. Kramer, Raleigh, for the State.

Kenneth A. Glusman, Asst. Public Defender, Fayetteville, for defendant.

LAKE, Justice.

Though the record contains no assignments of error, the appeal is, itself, an exception to the judgment and presents for our consideration the question of whether any error appears on the face of the record proper. State v. Elliott, 269 N.C. 683, 153 S.E.2d 330; State v. Darnell, 266 N.C. 640, 146 S.E.2d 800; State v. Sloan, 238 N.C. 672, 78 S.E.2d 738. We find no such error. The indictments were proper in form, the verdicts were properly returned and they support the sentences imposed. See, State v. Waddell, 282 N.C. 431, 194 S.E.2d 19; G.S. § 14-87.

Notwithstanding the absence of any assignment of error, the conclusion of the defendant's privately employed counsel, set forth in the record, that there is no sufficient ground for appeal, and the statement by the public defender in the defendant's brief that he has been unable to find any error which would justify a new trial, we have carefully reviewed the entire record, including the charge of the court to the jury. We find therein no error of law. The charge fully and correctly instructed the jury as to the elements of each of the offenses charged and as to the burden of proof and contained a full and accurate summary of the evidence.

The motion for judgment of nonsuit was properly overruled, the testimony of Sylvia Locklear being sufficient, if true, to show each element of the offense of robbery with a dangerous weapon and each element of the offense of rape. It is axiomatic that upon such a motion the evidence for the State is to be taken by the Court as true and is to be viewed in the light most favorable to the State, the evidence of the defendant in conflict therewith not being considered. State v. Price, 280 N.C. 154, 184 S.E.2d 866; State v. Primes, 275 N.C. 61, 165 S.E.2d 225; State v. Goines, 273 N.C. 509, 160 S.E.2d 469; State v. Cutler, 271 N.C. 379, 156 S.E.2d 679; Strong, N. C. Index 2d, Criminal Law, § 104. It is equally elementary that: "The force necessary to constitute rape need not be actual physical force. Fear, fright, or coercion may take the place of force. State v. Thompson, 227 N.C. 19, 40 S.E.2d 620. While consent by the female is a complete defense, consent which is induced by fear of violence is void and is no legal consent." State v. Primes, supra.

If the evidence of the State in the present case be true, the defendant is guilty of both of the offenses of which he has been convicted. If the evidence of the defendant be true, he is not guilty of either *459 of these offenses. This conflict in the evidence presented simply a question for the jury, which elected to believe the evidence of the State. Third Court is not authorized, in such a situation, to review the decision of the jury and substitute its opinion for that of the jurors. Relief on that ground, if any, may be obtained only through the exercise of the power of pardon or parole, which is not vested in this Court.

No error.