#### STATE v. RAYMOND EARLY, Alias DUMMY MOORE.

(Filed 27 January, 1937.)

1. Criminal Law § 16 — Arraignment oí deaf mute and acceptance of plea of not guilty through interpreter held without error in this case.

The court, upon his finding that defendant is a deaf mute, subpoenaed an interpreter, who after being duly sworn and after the reading of the indictment, interpreted and explained the indictment to defendant. After defendant had indicated to the interpreter that he understood the indictment, the interpreter translated the solicitor’s question of whether de*190fendant was guilty or not guilty, and upon a negative reply given through the interpreter, a plea of not guilty was entered. No contention or plea involving defendant’s sanity or his capacity to understand the nature of the crime charged or the purpose and effect of the trial, was tendered by defendant’s counsel. *Held:*There was no error on the arraignment of defendant or in the acceptance of his negative answer as a plea of not guilty. C. S., 4632.

2. Criminal Law § 67 — Supreme Court has no authority to determine whether clemency should be extended to a defendant.

Where there is no error of law in the trial, the judgment appealed from must be affirmed, the question of whether clemency should be extended defendant not being determinable by the Supreme Court, but being a matter for the Governor if and when it shall be duly presented to him for official action.

Appeal by defendant from Clement, *J.,*at August Term, 1936, of YadkiN.

No error.

This is a criminal action in which the defendant was tried on an indictment for rape.

Prior to his arraignment, it was made to appear to the court that the defendant is deaf and dumb. Upon so finding, the court ordered a subpoena to be issued for Rome C. Fortune, who was represented to the court to be qualified to act as an interpreter for deaf and dumb persons.

On the arraignment of the defendant, Rome 0. Fortune, who was present in response to the subpoena, was found by the court to be qualified by training and experience to act as interpreter for the defendant in this action. He was thereupon duly sworn, and at the request of the court, acted as interpreter for the defendant on his arraignment and during his trial.

The indictment appearing in the record was read to the defendant by the solicitor for the State, and in the presence of his counsel was interpreted and explained to him by Rome C. Fortune. After the defendant had replied in the affirmative to the question of the interpreter as to whether he understood the indictment and the charge made against him therein, the solicitor asked the defendant the following question :

“Raymond Early, alias Dummy Moore, are you guilty of the rape and felony whereof you are charged, or not guilty ?”

The defendant replied, “No,” and was thereupon put upon his trial on a plea of “not guilty.”

At the conclusion of his arraignment, defendant’s counsel objected thereto, and duly excepted to the refusal of the court to allow his objection.

At the trial, the evidence for the State tended to show that some time between 1 and 3 o’clock, during the night of 16 August, 1936, the prosecutrix, a married woman, who had been asleep in a bed in her *191borne, was awakened, by a man wbo bad entered tbe borne while sbe was asleep; that tbe man wbo awoke ber threw a sheet over ber bead, and after awaking ber, assaulted ber on ber bed; that by force and violence, and against ber will, be bad sexual intercourse with ber; that ber bus-band, wbo was sleeping in an adjoining room, was awakened by ber cries, and that when be came into tbe room in response to ber cries, was knocked down and rendered unconscious by tbe man wbo bad assaulted and raped bis wife; that ber husband bad been rendered unconscious by him, and while be was lying on tbe floor, tbe man again assaulted and raped tbe prosecutrix; that there was no light in the room when tbe crime was committed, and for this reason tbe prosecutrix did not discover tbe identity of tbe man wbo assaulted and raped ber, although sbe did discover that be was a negro; and that after the man wbo bad assaulted and raped ber, ran from tbe room to tbe porch, where an electric light was burning, tbe prosecutrix discovered that tbe defendant was tbe man. Tbe prosecutrix testified that sbe bad known tbe defendant for several years; that be lives about a mile from ber home. Sbe informed tbe officers, wbo began an investigation of tbe crime immediately after its commission, about Y or 8 o’clock tbe next morning, that tbe defendant was tbe man wbo bad assaulted and raped ber.

Tbe testimony of tbe prosecutrix both as to tbe commission of tbe crime and as to tbe identity of tbe defendant as tbe man wbo bad committed tbe crime, was corroborated by evidence offered by tbe State.

Tbe defendant did not testify as a witness in bis own behalf. Evidence offered by him tended to show that be was not at tbe borne of tbe prosecutrix at any time during tbe night tbe crime was committed, but that be was at bis borne from 11 or 12 o’clock that night until tbe next morning when be went to bis work as usual.

Tbe defendant was arrested by tbe sheriff of Yadkin County some time between Y and 8 o’clock on tbe morning after the crime was committed. He then claimed as bis own a cap which tbe sheriff testified be bad found in tbe room of tbe prosecutrix soon after tbe commission of tbe crime.

Tbe evidence for both tbe State and tbe defendant was submitted to tbe jury under a charge by tbe court, to which there were no exceptions by tbe defendant.

Tbe jury returned a verdict of “guilty of rape.”

From judgment that be suffer death by means of asphyxiation as prescribed by statute, tbe defendant appealed to tbe Supreme Court, assigning errors in tbe trial.

*Attorney-General Seawell and Assistant Attorney-General McMullan for the State.*

*Ottis J. Reynolds and George P. Pell for defendant.*

*192OoNNOR, J.

It was not contended on behalf of the defendant on bis trial in the Superior Court, nor is it contended on bis appeal to this Court, that the defendant, because of bis infirmity, was incapable of understanding the nature of the crime with which be was charged in the indictment, or the purpose and effect of bis trial. No plea involving bis capacity to plead to the indictment, or bis sanity was tendered by bis counsel. For this reason, the procedure approved by this Court in *S. v. Harris,*53 N. C., 136, was not followed by the trial court. In that case, upon its finding that the defendant who was charged in the indictment with murder, was deaf and dumb, and upon the suggestion of bis counsel that because of bis infirmity be was incapable of pleading to the indictment, the court submitted issues to the jury involving bis capacity to plead, and bis sanity at the time of the trial. After bearing evidence pertinent to these issues and instructions by the court, the jury answered both issues favorable to the contentions of counsel for the defendant. the court thereupon declined to proceed with the trial, and ordered that the defendant be confined for safe keeping.

There was no error on the arraignment of the defendant in this action, nor in the acceptance by the court of bis plea of not guilty. The suggestion that bis negative answer to the question addressed to him by the solicitor, as to whether be was guilty or not guilty of rape and felony with which be was charged in the indictment, does not seem to call for comment. The negative answer of the defendant was properly accepted by the court as a plea by defendant of not guilty. C. S., 4632.

Assignments of error on behalf of the defendant, based upon exceptions to the admission or exclusion of testimony as evidence at the trial, have been carefully considered. They cannot be sustained.

"We find no error in the trial, and for that reason the judgment must be affirmed. Whether or not clemency should be extended to the defendant because of bis infirmity, cannot be determined by this Court. Under the Constitution of this State, that question must be determined by the Governor when and if it shall be duly presented to him for official action. See *S. v. Jackson, post,*202.

No error.