#### STATE v. GRANGER THOMPSON, CLIFF INMAN, CALVIN COVINGTON and STACY POWELL.

(Filed 11 December, 1946.)

1. Rape § 1—

In order to constitute tbe crime of rape the carnal knowledge of prose-cutrix must be attained forcibly and against ber will.

2. Rape § 4—

Testimony of prosecutrix that she “did not object to the intercourse . . . because ... I was afraid they would kill me” and that she did not consent and used as much force as she could to prevent defendant from having sexual intercourse with her, is sufficient evidence that the intercourse was attained by force and against her will.

3. Rape § 1—

“Force” necessary to constitute rape need not be actual physical foreg-Fear, fright, or coercion maj' take the place of force.

4. Criminal Law § 81f—

On appeal from the overruling of defendants’ demurrers to the evidence the Supreme Court is not concerned with the weight of the testimony or with its truth or falsity, but only whether the evidence is sufficient to carry the case to the jury and sustain the indictment, considering the evidence in the light most favorable to the State and giving it the benefit of every fact and inference of fact which may be reasonably deduced therefrom.

5. Criminal Law § 52a—

Equivocation on the part of prosecutrix would not justify taking the case from the jury.

6. Criminal Law § 33—

The finding by the trial court upon conflicting evidence that the confessions offered in evidence were not obtained by threats, assaults, beat- ■ ings and ill treatment, is conclusive.

7. Same—

A- confession cannot be held as a matter of law to have been made under compulsion of hope because of the fact that officers, after a defendant had expressed a desire to speak, advised that it would be better for defendants to tell the truth. The distinction between such admonition and advice to confess guilt or language inducing a defendant to make an untrue statement, pointed out.

8. Same—

A voluntary confession is admissible in evidence against the party making it; an involuntary one is not. A confession is voluntary in law when, and only when, it is in fact voluntarily made.

9. Same—

The voluntariness of a confession is pi’imarily a question for the trial court, and its decision in respect thereto can be reviewed only upon mat*20ters of law, viz., tlie standard for determining whether a confession is involuntary, what evidence is competent upon the question, and whether the evidence is sufficient to support the trial court’s findings.

10. Criminal' Law § 78e (2) —

An exception to the statement of a contention of the State is unavailing when defendant makes no objection at the. time and fails to call the matter to the court’s attention at any time during the trial so as to afford opportunity for correction.

11. Rape § 4—

Testimony in this case *held*sufficient to show that defendant was guilty of rape as a principal, co-conspirator, or aider and abettor, and such defendant’s motion to nonsuit was properly overruled.

12. Rape § 4—

The evidence tended to show that prosecutrix was attacked and ravished by three defendants in turn, and that the fourth defendant returned as the last of the three was committing the act, and that then the fourth defendant carnally knew prosecutrix. *Held:*It is for the jury to determine whether prosecutrix was prevented from fiercely resisting the fourth defendant from fear or the exhibition of force, or whether under the circumstances resistance would have been futile and might have been fatal.

13. Criminal haw § 53d—

The charge of the court in this case *held*to have complied with the statutory requirement that the court state in a plain and correct manner the evidence given in the casé and declare and explain the law arising thereon. G. S., 1-180.

Appeal by defendants from *Williams, J.,*at April Term, 1946, of EobesoN.

Criminal prosecution on indictment charging the defendants with rape.

The evidence for the State tends to show that on the night of 17 March, 1946, around the hour of midnight, the defendants severally had sexual intercourse with the prosecuting witness, Mrs. Dorothy Lou Fry, who testified: “I did not object to the intercourse these defendants had with me because I was so frightened, I was afraid they would kill me; it was against my wishes and against my will. ... I did not consent; I used as much force as I could to keep them from having sexual intercourse with me.”

Three of the defendants, Granger Thompson, Stacy Powell and Calvin Covington, admitted having to do with the prosecutrix, but contended that it was commercialized vice, or prostitution, and that the prosecutrix complained only upon their failure to pay' the stipulated price. The defendant, Cliff Inman, denied having anything to do with the prosecu-trix, and pleaded an alibi.

*21Tbe prosecutrix is a white woman, married and the mother of three children. She accompanied Frank Straughan, a white man, also married but not her husband, into the colored section of the Town of Lumber-ton on Sunday night in order that he might get a drink of whiskey. They were not strangers to that portion of the town. The defendants are Negroes.

Straughan’s car was stopped in the dark near Granger Thompson’s house, and would not start again under its own battery. Straughan asked, the defendants to push his car, which they did, even to pushing it into the ditch, but were unable to start it. The defendants “went off and talked awhile” and then Inman suggested that he would go down the road and get a chain, if Straughan would go with him, so as to move the car by tying it to his own car. He would not go alone. While Straughan and Inman were gone to get the chain, the other defendants, accompanied or forcibly took the prosecutrix to an unfinished house about a block away and there had intercourse with her, Thompson first, Powell second, and Covington third. In the meantime, Inman had returned, helped Straughan start his car, went to the unfinished house, and the prosecutrix says: “While Covington was having intercourse with me, Inman came to the door and Inman had sexual intercourse with me after Covington did.” Straughan drove back to town looking for the prose-cutrix, and the prosecutrix says Inman carried her home in his Ford car. Inman testified that he took the chain back, after helping Straughan start his car, and then went to his home.

Three of the defendants, Thompson, Powell and Covington, were arrested that night and brought to Raleigh early Monday morning and lodged in the State’s Prison for safekeeping. Covington made several statements to the officers in the nature of confessions before leaving Lumberton, and repeated them in the presence of Thompson and Powell in the jail at Lumberton and again a day or two later in the State’s Prison at Raleigh.

Immediately upon his arrest by officers Stanley Hardee and Cliff Britt, and again while going to police headquarters in Lumberton, Covington declared he wanted to tell the truth about the matter. Officer Hardee said to him, “It would be better to go on and tell us the truth than try to lie about it. ... I told him it would be better to come on and tell the truth.” Covington told them that Thompson and Powell forcibly took the prosecutrix from the Straughan car and carried her to the unfinished house. That he went along. All had connection with her.

Later, in the presence of Thompson and Powell in the State’s Prison at Raleigh, Covington repeated his inculpatory statements, and Thompson and Powell also confessed to ravishing the prosecutrix. In consequence of Thompson’s statement, Cliff Inman was arrested and brought to Raleigh. The other defendants then repeated their statements in the *22presence of Inman, to which. Inman replied: “I didn’t have anything to do with it. I went and got a chain.”

Upon the trial, the three defendants, Thompson, Powell and Coving-ton, repudiated their confessions and sought to have them excluded on the ground that they were involuntary. The judge heard the evidence, *pro*and *con,*and admitted them as voluntary statements in the nature of confessions. The testimony of the defendants and that of the sheriff and .the arresting officers was in sharp conflict as to the treatment accorded the defendants while they were under arrest and before any statements were made.. The officers at the State’s Prison testified that upon their arrival there the defendants showed no signs of ill treatment such as they contended they were subjected to, both in Lumberton and on their way to Ealeigh.

Verdict: Guilty of the crime of rape as to each of the defendants.

Judgment: Death by asphyxiation as to all four of the defendants.

The defendants appeal, assigning errors.

*Attorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State.'*

*J. S. Bowser and L. P. Harris for defendants Thompson, Powell, and Covington.*

*Herman L. Taylor of counsel.*

*J ohnson & J ohnson for defendant Inman.*

Stacy, C. J.

We have here for determination (1) the sufficiency of the evidence to carry the cases to the jury, (2) the competency of evidence, particularly the confessions, and (3) the adequacy and correctness of the charge.

I. The Oases Against Thompson, Powell and Covington :

Specifically, the question posed by the demurrers 'is whether the evidence permits the inference that sufficient “force” was used to constitute rape. The prosecution says, “Yes”; the defendants say, “No.” Carnal knowledge of the prosecutrix by three of the defendants is admitted. If such knowledge were attained “forcibly and against her will,” it was rape; otherwise not. *S. v. Johnson,*226 N. C., 671; *S. c., ibid.,*266, and cases there cited. We think the issue was one for the twelve. True, the prosecutrix unwittingly says she did not “object to the intercourse” which the defendants had with her, but this was predicated upon the reason stated that she feared for her life, and “it was against my wishes and against my will.” She further says: “I did not consent; I used as much force as I could to keep them from having sexual intercourse with me.” It is conceded that the “force” necessary to constitute rape, need *23not be actual physical force. 52 C. J., 1024. Fear, fright, or coercion, may take the place of force. 44 Am. Jur., 903.

In considering- the demurrers to the evidence, we are not concerned with the weight of the testimony, or with its truth or falsity, but only with its sufficiency to carry the cases to the jury and to sustain the indictment. *S. v. Vincent,*222 N. C., 543, 23 S. E. (2d), 832; *S. v. Smith,*221 N. C., 400, 20 S. E. (2d), 360; *S. v. Rountree,*181 N. C., 535, 106 S. E., 669. And in passing upon this question it is not to be overlooked that the State is entitled to the benefit of every fact and inference of fact pertaining to the matters involved which may reasonably be deduced from the evidence. *S. v. Stephenson,*218 N. C., 258, 10 S. E. (2d), 819; *S. v. Carr,*196 N. C., 129, 144 S. E., 698. “The practice is now so firmly established as to admit of no questioning that, on a motion to nonsuit, the evidence is to be considered in its most favorable light for the prosecution.” *S. v. Beal,*199 N. C., 278, 154 S. E., 604. Viewed in this wise, we conclude that the demurrers were properly overruled. Even equivocation on the part of the prosecutrix, if such there were, which is unconceded, would not take the case from the jury. *Ward v. Smith,*223 N. C., 141, 25 S. E. (2d), 463; *Bank v. Ins. Co.,*223 N. C., 390, 26 S. E. (2d), 862; *Shell v. Roseman,*155 N. C., 90, 71 S. E., 86.

The three defendants who made statements to the officers in the nature of confessions stressfuliy contend that these confessions were erroneously admitted in evidence, because they say, the statements were (1) extracted by fear, or (2) induced by hope. The first reason assigned is untenable in the light of the record; the second may require some analysis.

1. The allegation that the confessions were provoked by assaults, beatings and ill treatment on the part of the officers, while the defendants were in their custody, was fully investigated by the trial court, as was his duty under the law. *S. v. Brooks,*225 N. C., 662, 36 S. E. (2d), 238. The testimony of the defendants in this respect was categorically denied by the officers who had them in charge. Likewise, the officers at the State’s Prison testified that upon their arrival there, the defendants showed no signs of having been assaulted or mistreated. On this conflict of evidence, the trial court found that the allegation of extortion of the confessions by threats and violence was without foundation in fact. The conclusion is definitive under our practice. *S. v. Lord,*225 N. C., 354, 34 S. E. (2d), 205; *S. v. Biggs,*224 N. C., 23, 29 S. E. (2d), 121, and cases there cited.

2. The allegation that the confessions were induced by the flattery of hope, presents a different question. Anno. 7 A. L. R., 423. There is no conflict in the evidence on this point. The officers themselves testify that- they told Covington, “It would be better to go on and tell us the truth than try to lie about it. . . .; it would be better to come on and *24tell tbe truth.” These admonitions, however, were given after Covington had expressed a desire to tell the truth about the matter, and apparently in response to such declaration or expression.

It will be noted the suggestion made by the officers was, that Covington “tell us the truth,” or “come on and tell the truth,” not that he confess his guilt, such as appeared in the cases of *S. v. Anderson,*208 N. C., 771, 182 S. E., 643, and *S. v. Livingston,*202 N. C., 809, 164 S. E., 337, which are cited and relied upon by the defendants as authorities for their position here. The rule generally approved is, that “where the prisoner is advised to tell nothing but the truth, or even when what is said to him has no tendency to induce him to make an untrue statement, his confession, in either case, is admissible.” *S. v. Harrison,*115 N. C., 706, 20 S. E., 175; *S. v. Myers,*202 N. C., 351, 162 S. E., 764; *S. v. Moore,*210 N. C., 686, 188 S. E., 421; *S. v. Bohanon,*142 N. C., 695, 55 S. E., 797; *S. v. Caldwell,*212 N. C., 484, 193 S. E., 716; *S. v. Gee Jon,*46 Nev., 418, 211 P., 676, 30 A. L. R., 1443.

Tested by the above standard and the rationale of the decided cases, the impression is gained that the ruling of the trial court is in line with the authoritative decisions on the subject. The circumstances of the present record appear to be without exact parallel in any of the cases examined. See Anno. 24 A. L. R., 703. We cannot say as a matter of law that the confessions were made under the impulsion of hope. *S. v. Myers, supra.*No promise of escape or lighter sentence was suggested or held out by the officers to induce them. *S. v. Bohanon, supra.*The defendants were advised to tell nothing but the truth. That such “would be better for them” accords with the teachings of experience that “open and frank responses by innocent persons arrested under misapprehension are generally powerful aids in securing their prompt discharge from custody.” *S. v. Grass,*223 N. C., 31, 25 S. E. (2d), 193; *S. v. Oxendine,*223 N. C., 659, 27 S. E. (2d), 814. Moreover, the confessions were repeated several days later, far removed from the local scene, and under circumstances quite different from those obtaining when the defendants were first arrested. *S. v. Moore, supra; White v. State,*129 Miss., 182, 91 So., 903, 24 A. L. R., 699.

It all comes to this: Confessions are either voluntary or involuntary. A voluntary confession is admissible in evidence against the party making it; an involuntary one is not. 22 C. J. S., 1424. A confession is voluntary in law when—and only when—it was in fact voluntarily made. *S. v. Newsome,*195 N. C., 552, 143 S. E., 187; *S. v. Patrick,*48 N. C., 443; *S. v. Roberts,*12 N. C., 259. “Confessions are to be taken as *prima facie*voluntary, and admissible in evidence, unless the party against whom they are offered allege and show facts authorizing a legal inference to the *contrary”*—Dillard, *J.,*in *S. v. Sanders,*84 N. C., 729.

*25Tbe voluntariness of a confession is primarily a question for tbe trial court. *S. v. Alston,*215 N. C., 713, 3 S. E. (2d), 11; *S. v. Whitener,*191 N. C., 659, 132 S. E., 603. It is only when some question of law arises in connection witb tbe court’s determination of tbe matter tbat tbe competency of a confession may be reviewed on appeal. *S. v. Manning,*221 N. C., 70, 18 S. E. (2d), 821. Of course, tbe standard for tbe determination, or wbat facts render a confession involuntary, is a question of law, and may be reviewed by tbe appellate tribunal. *S. v. Biggs, supra; S. v. Grier,*203 N. C., 586, 166 S. E., 595; *S. v. Crowson,*98 N. C., 595, 4 S. E., 143. “Wbat amounts to sucb threats or promises as render confessions inadmissible, as being *not voluntary;*wbat evidence tbe judge will bear to establish tbe facts of threats or promises; and whether there be any evidence to show tbat tbe confessions were not voluntary are questions of law, and tbe decision upon them is subject to review in tbe Supreme Court”—First Headnote, *S. v. Andrew,*61 N. C., 205.

Tbe defendants also assign as error certain portions of tbe charge. It was recited as a contention of tbe State, in replying to tbe issue of consent, raised by tbe defendants’ plea, tbat tbe jury ought not to find there was any consent on tbe part of tbe prosecutrix, “because it was contrary to tbe training and natural instinct tbat she should permit a person of tbe opposite race to have sexual intercourse witb her.” No objection was interposed at tbe time this contention was given; nor was it called to tbe court’s attention at any time during tbe trial so as to afford an opportunity of correction, if correction were needed or desired. In these circumstances, tbe exception is without avail. *S. v. McNair,*226 N. C., 462; *S. v. Rising,*223 N. C., 747, 28 S. E. (2d), 221.

Tbe remaining assignments of error made by tbe defendants, Thompson, Powell and Covington, require no special elaboration. They are without substantial merit, and none can be sustained.

II. The Case AgaiNst INMAN:

There is evidence tending to show tbat Cliff Inman was a principal, co-conspirator, or aider and abettor in tbe crime charged. *S. v. Johnson, supra.*Tbe testimony of tbe prosecutrix was sufficient to make him a principal; tbat of Straugban and tbe prosecutrix to make him a co-conspirator or an aider and abettor. *S. v. Whitehurst,*202 N. C., 631, 163 S. E., 683; *S. v. Johnson, supra.*His demurrer to tbe evidence was properly overruled. Tbe credibility of tbe witnesses was for tbe jury.

Tbe point is made witb much emphasis tbat tbe testimony of tbe prosecutrix as to her resistance is too weak as against tbe defendant Inman. Tbe circumstances must be considered. We think it was for tbe jury to say whether tbe prosecutrix was prevented from fiercely *26resisting by terror or tbe exhibition of force, or was “in such place and position that resistance would have been useless,” and might have been fatal. *Mills v. United States,*164 U. S., 644, 41 L. Ed., 584; 44 Am. Jur., 904.

It is also advanced on behalf of the defendant Inman that the trial court omitted to “state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon” as required by G. S., 1-180. A careful perusal of the charge instills the thought that it is free from successful attack on the ground suggested. *Cf. S. v. Benton,*226 N. C., 745, where the meaning and significance of the statute received full consideration.

A searching investigation of the entire record fails to reveal any reversible error on the part of the trial court. Hence, the verdict and judgments as to all four of the defendants will be upheld.

No error.