State v. CaldwellAnnotate this Case
237 S.E.2d 742 (1977)
293 N.C. 336
STATE of North Carolina v. Roger Lee CALDWELL.
Supreme Court of North Carolina.
October 11, 1977.
*744 Rufus L. Edmisten, Atty. Gen., by James Wallace, Jr., Asst. Atty. Gen., Raleigh, for the State of North Carolina.
C. Gary Triggs, Morganton, for defendant-appellant.
Defendant contends the trial court erred by placing upon him the burden of proving to the satisfaction of the jury that he was insane at the time of the offense. This constitutes his first assignment of error.
In this jurisdiction insanity is an affirmative defense which must be proved to the satisfaction of the jury by every accused who pleads it. "Since soundness of mind is the natural and normal condition of men, everyone is presumed to be sane until the contrary is made to appear. This presumption of sanity applies to persons charged with crime, but it is rebuttable.... These considerations give rise to the firmly established rule that the burden of proof upon a plea of insanity in a criminal case rests upon the accused who sets it up. But he is not obliged to establish such plea beyond a reasonable doubt. He is merely required to prove his insanity to the satisfaction of the jury." State v. Swink, 229 N.C. 123, 47 S.E.2d 852 (1948). The quoted rule has been applied in numerous decisions of this Court including State v. Willard, 292 N.C. 567, 234 S.E.2d 587 (1977); State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595 (1976); State v. Shepherd, 288 N.C. 346, 218 S.E.2d 176 (1975); State v. Caddell, 287 N.C. 266, 215 S.E.2d 348 (1975); State v. Cooper, 286 N.C. 549, 213 S.E.2d 305 (1975).
Defendant argues, however, that Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), requires reallocation of the burden of proof with respect to insanity so that the burden must henceforth rest upon the State. The argument is unsound. The constitutional correctness of our decisions is reinforced by the following language of the United States Supreme Court in Patterson v. New York, ___ U.S. ___, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (decided 17 June 1977):"[I]n Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), the Court further announced that under the Maine law of homicide, the burden could not constitutionally be placed on the defendant of proving by a preponderance of the evidence that the killing had occurred in the heat of passion on sudden provocation. The Chief Justice and Mr. Justice Rehnquist, concurring, expressed their understanding that the Mullaney decision did not call into question the ruling in Leland v. Oregon, supra [343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302], with respect to the proof of insanity. Subsequently, the Court confirmed that it remained constitutional to burden the defendant with proving his insanity defense when it dismissed, as not raising a substantial federal question, a case to which the appellant specifically challenged the continuing validity of Leland v. Oregon. This occurred in Rivera v. Delaware, 429 U.S. 877, 97 S. Ct. 226, 50 L. Ed. 2d 160 (1976), an appeal from a Delaware conviction which, in reliance on Leland, had been affirmed by the Delaware Supreme Court over the claim that the Delaware statute was unconstitutional because it burdened the defendant with proving his affirmative defense of insanity by a preponderance of the evidence. The claim in this Court was that Leland had been overruled by Winship [397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368] and Mullaney. We dismissed the appeal as not presenting a substantial federal question. Cf. Hicks v. Miranda, 422 U.S. 332, 344, 95 S. Ct. 2281, 45 L. Ed. 2d 223 (1975)."
Thus enlightened, we conclude the the burden of proof with respect to defendant's plea of insanity was correctly placed upon the defendant. His first assignment of error is overruled.
Judge Thornburg instructed the jury that "the choking and kissing and the straddling of a female person by a male person without her consent intending at the time to use whatever force might be necessary to have sexual intercourse with her, *745 notwithstanding resistance that she might make," would be an assault with intent to commit rape. Defendant contends the court thereby erroneously defined the crime of assault with intent to commit rape and assigns the quoted instruction as error.
We note from the record that the court further instructed the jury that in order to convict defendant of first degree burglary the State must prove beyond a reasonable doubt that defendant intended, at the time he entered Mrs. Barnette's apartment, to commit an assault with intent to rape.
An examination of the challenged portion of the charge reveals no error. Immediately following the quoted portion, the jury was specifically instructed:"So I instruct you, members of the jury, that if you find from the evidence, beyond a reasonable doubt, that on or about the 23rd and 24th of September 1975, the defendant, Roger Lee Caldwell, broke and entered the sleeping apartment of Betty Jo Barnette without her consent in the nighttime and intending at that time to commit the crime of assault with intent to commit rape, and that Betty Jo Barnette was in the house when defendant broke and entered the sleeping quarters or apartment house, it would be your duty to return a verdict of guilty of burglary in the first degree. However, if you do not so find or if you have a reasonable doubt as to one or more of those things, you will not return a verdict of guilty of burglary in the first degree. If you do not find the defendant guilty of burglary in the first degree, then you will consider whether or not the defendant is guilty of non-felonious breaking or entering."
In our view the charge of the court correctly defined the offense of assault with intent to commit rape and properly applied the law relevant thereto with respect to the burglary charged in the bill of indictment. "Whether the ulterior criminal intent existed in the mind of the person accused, at the time of the alleged criminal act, must of necessity be inferred and found from other facts, which in their nature are the subject of specific proof. It must ordinarily be left to the jury to determine, from all the facts and circumstances, whether or not the ulterior criminal intent existed at the time of the breaking and entry. In some cases the inference will be irresistible, while in others it may be a matter of great difficulty to determine whether or not the accused committed the act charged with the requisite criminal purpose." State v. Allen, 186 N.C. 302, 119 S.E. 504 (1923); accord, State v. Wells, 290 N.C. 485, 226 S.E.2d 325 (1976); State v. Bell, 285 N.C. 746, 208 S.E.2d 506 (1974). Defendant's second assignment is overruled.
Examination of the entire record impels the conclusion that defendant received a fair trial free from prejudicial error. Hence the verdict and judgment must be upheld. The sentence pronounced is within statutory limits. G.S. 14-52. If the punishment is deemed excessive, relief may be sought through the Board of Paroles.