#### STATE v. WILBERT JOHNSON and CHARLES PRIMUS, JR.

(Filed 6 November, 1946.)

1. Rape §§ 1, 8—

Carnally knowing any female of tbe age of twelve years or more by force and against ber will is rape; and carnally knowing and abusing any female child under tbe age of twelve years is also rape, C. S., 14-21.

2. Rape § 1—

“Force” as an element of rape may be either actual or constructive, and submission under fear or duress may take the place of actual physical force.

3. Rape § *1%*—

The single crime of rape may be committed by more than one offender, and a person who is present and aids and abets the actual ravisher, is a principal and equally guilty.

*6724. Criminal Law § 8—

Aiders and abettors who assist in the perpetration of a crime are principals.

5. Rape § 4 — Evidence of guilt of both defendants of rape, one as perpetrator and other as aider and abettor, held sufficient.

Evidence that defendants, in the middle of the night, pursuant to an admitted conspiracy to rob, took charge of a parked automobile occupied by prosecutrix and her male companion, drove it into the county, robbed the occupants and forced them to alight, and that one of defendants then ordered prosecutrix to remain at the spot with the other defendant, and forced her companion, at pistol point, to march two hundred feet away with him, and that while thus separated from her companion, the defendant who remained with prosecutrix threatened to kill her or do her great bodily harm if she resisted, and in the circumstances where resistance would be useless and might have been fatal, prosecutrix submitted to him “on account of fear” *is held*sufficient to carry the case to the jury as to the guilt of each defendant on the capital charge of rape, one as the actual perpetrator, and the other as an aider and abettor.

6. Criminal Law' §§ 52a, 8 If—

A demurrer to the evidence presents the sufficiency of the evidence considered in the light most favorable to the State, to carry the case to the. jury or to* support the verdict, and neither the trial court nor the Supreme Court on appeal may pass upon the weight of the evidence or the credibility of the witness.

Appeal by defendants from *Harris, J.,*at June Term, 1946, of Wake.

Criminal prosecution on indictment charging the defendants with rape.

Following arrest of judgment at the Spring Term, 1946, reported *ante,*266, for defect in bill of indictment, another bill ivas duly returned against the defendants charging them with the carnal knowledge of a female forcibly and against her will. Upon this indictment they were again tried and convicted.

The record discloses that on the night of 19 June, 1945, about the hour of 11:45 p.m. Charles Primus, Jr., and Wilbert Johnson (Negroes), armed and admittedly bent on robbery, took charge of an automobile which was parked on Whitaker Mill Road in the northern part of the City of Raleigh and occupied at the time by John Guignard and Virginia Lipscomb (Whites), drove it a distance of about six miles into the country, ran it into a ditch, got out and ordered the occupants to do likewise, demanded their pocketbooks, commanded them to go down a road in the woods; the defendants then held a whispered conversation, after which Johnson, with gun in hand, directed Miss Lipscomb to “stay there,” with Primus and marched Guignard approximately 200 feet down a path and demanded to know where his money was. While the parties were thus separated, Primus had intercourse with the prosecutrix after threatening to kill her if she did not submit. She says, “I submitted to Primus on *673account of fear.” Tbe defendants were over 18 years of age; and tbe prosecutrix was 25 years old at tbe time of tbe assault.

Soon after tbe rape was accomplished tbe defendants freed tbe prose-cutrix and ber companion and allowed tbem to make tbeir way to a bouse in tbe neighborhood.

Tbe defendants admitted in statements in tbe nature of confessions that they obtained $650 from- Guignard and $38 from Miss Lipscomb. Each originally claimed tbe other committed tbe rape, but finally Primus admitted be was tbe one who actually assaulted tbe prosecutrix. Johnson was tried on tbe theory of an accessory, being present, aiding and abetting in tbe perpetration of tbe capital offense. He was referred to by Primus as “tbe boss” of tbe bold-up conspiracy.

Verdict: Guilty of rape as to each defendant.

Judgments: Death by asphyxiation as to both defendants.

Defendants appeal, assigning as error tbe refusal of tbe court to sustain tbeir demurrers and dismiss tbe action as in case of nonsuit. G. S., 15-173.

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

*A. B. Breece for defendants.*

Stacy, C. J.

The questions presented are whether the cases as made can survive the demurrers. Specifically, the question posed by Primus is whether the evidence shows force sufficient on bis. part to constitute rape; and the question raised by Johnson is whether the evidence renders him a participant in the capital offense. the defendants concede that they conspired to get money by bold-up and robbery on the night in question, but they contend that any additional crime was in excess of their original design. *S. v. Trammell,*24 N. C., 379. *Cf. S. v. Smith,*221 N. C., 400, 20 S. E. (2d), 360; *S. v. Bell,*205 N. C., 225, 171 S. E., 50.

I. The Case Against Peimus :

“Rape is the carnal knowledge of a female forcibly and against ber will.” *S. v. Jim,*12 N. C., 142. This was the early definition of the crime, and it still has the same significance in the law. *S. v. Marsh,*132 N. C., 1000, 43 S. E., 828; *S. v. Johnston,*76 N. C., 209. Our statute also makes it rape, carnally to know and abuse any female child under the age of twelve years, even though she consents. G. S., 14-21; *S. v. Storkey,*63 N. C., 7. In other words, “ravishing and carnally knowing any female of the age of twelve years or more by force and against ber will” is rape; and “carnally knowing and abusing any female child under the age of twelve years” is also rape. G. S., 14-21; *S. v. Monds,*130 N. C., 697, 41 S. E., 789.

*674In the instant case, as against Primns, it was incumbent upon the State to show that his connection with the prosecutrix was accomplished “by force and against her will.” “By force,” however, is not necessarily meant by actual physical force. 52 C. J., 1024. It may be actual or constructive. Anno. 8 L. R. A., 297. Fear, fright, or duress, may take the place of force. 44 Am. Jur., 903. The case is replete with evidence that the prosecutrix submitted “on account of fear” and after the defendant had threatened to kill her or do her great bodily harm, if. she resisted. Indeed, the circumstances themselves were terrifying. The prosecutrix and her companion had been held up and robbed in the middle of the night by two strange men whom they regarded as desperadoes. Johnson with gun in hand ordered the prosecutrix to “stay there” in the wooded path with Primus while he marched her companion farther “down the path.” Under these circumstances, the prosecutrix “submitted to Primus on account of fear.” The jury has found that the intei’course was against her will; that she was prevented from fiercely resisting by terror or the exhibition of force, and .that she was “overcome by numbers or terrified by threats, or- 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. The evidence against Primus was sufficient to carry the case to the jury, and his demurrer was properly overruled. *S. v. Sutton,*225 N. C., 332, 34 S. E. (2d), 195; *S. v. Wagstaff,*219 N. C., 15, 12 S. E. (2d), 657; *S. v. Page,*215 N. C., 333, 1 S. E. (2d), 887.

II. The Case Againtst JonisrsoN :

The theory of the prosecution against Johnson is, that he was present, aiding and abetting in the commission of the rape. *S. v. Ham,*224 N. C., 128, 29 S. E. (2d), 449; *S. v. Epps,*213 N. C., 709, 197 S. E., 580; *S. v. Ray,*212 N. C., 725, 194 S. E., 482; *S. v. Gosnell,*208 N. C., 401, 181 S. E., 323; *S. v. Donnell,*202 N. C., 782, 164 S. E., 352; *S. v. Beal,*199 N. C., 278, 154 S. E., 604; *S. v. Hart,*186 N. C., 582, 120 S. E., 345; *S. v. Skeen,*182 N. C., 844, 109 S. E., 71; *S. v. Jarrell,*141 N. C., 722, 53 S. E., 127. While Primus was the actual rapist, still it was Johnson who provided the opportunity and afforded the protection. *S. v. Kelly,*216 N. C., 627, 6 S. E. (2d), 533. After a whispered conversation with Primus he ordered 'the prosecutrix to “stay there” with Primus in the wooded path, and then commanded her companion to move farther into the woods. *S. v. Bell, supra.*

If not the real author of the crime, Johnson was “the boss,” directing the movements of the parties, lending aid and comfort by his presence and consenting unto the wrong. This made him a partaker of the offense and *pariiceps criminis. S. v. Whitehurst,*202 N. C., 631, 163 S. E., 683. True, he again demanded of Guignard to know where his money was, *675but tbis, tbe prosecution contends, was only a ruse as tbe money bad already been taken. As soon as tbe crime was ac'complisbed, tbe prose-cutrix and ber companion were freed by tbeir captors.

Tbe single crime of rape may be committed by more tban one offender. *S. v. Jordan,*110 N. C., 491, 14 S. E., 752; *S. v. Dowell,*106 N. C., 722, 11 S. E., 525; *S. v. Jones,*83 N. C., 605; Anno. 8 L. R. A., 297. If others are present, aiding and abetting tbe actual ravisber, tbey would all be principals and equally guilty. *S. v. Triplett,*211 N. C., 105, 189 S. E., 123. Aiders and abettors wbo assist in tbe perpetration of a crime are principals, and may be tried as sucb. *S. v. Holland,*211 N. C., 284, 189 S. E., 761; *S. v. Hart, supra; S. v. Fox,*94 N. C., 928. “Where two persons aid and abet each other in tbe commission of a crime, both being present, both are principals and equally guilty.” *S. v. Jarrell, supra; S. v. Williams,*225 N. C., 182, 33 S. E. (2d), 880.

Tbe evidence against Johnson was sufficient to carry tbe case to tbe jury, and bis demurrer was properly overruled. *S. v. Lambert,*196 N. C., 524, 146 S. E., 139; *S. v. Baldwin,*193 N. C., 566, 137 S. E., 590; *S. v. Hart, supra.*

These are tbe only exceptions presented by tbe appeal. Tbey are without special merit on tbe present record, and are not sustained. Tbe court’s inquiry, upon demurrer to tbe evidence, is directed to its sufficiency to carry tbe case to the jury or to support a verdict, and not to its weight or to tbe credibility of tbe witnesses. *S. v. Vincent,*222 N. C., 543, 23 S. E. (2d), 832; *S. v. Rountree,*181 N. C., 535, 106 S. E., 669. Tbe jury alone are tbe triers of tbe facts. *S. v. Anderson,*208 N. C., 771, 182 S. E., 643. We are not permitted to weigh tbe evidence here. *S. v. Fain,*106 N. C., 760, 11 S. E., 593. “In considering a motion to dismiss tbe action under tbe statute, we are merely to ascertain whether there is any evidence to sustain tbe indictment; and in deciding tbe question we must not forget that tbe State is entitled to tbe most favorable interpretation of tbe circumstances and all inferences that may fairly be drawn from them. ... It is not tbe province of tbis Court to weigh tbe testimony and determine what tbe verdict should have been, but only to say whether there was any evidence for tbe jury to consider; and if there was, tbe jury alone could determine its *weight”*— Adams, *J.,*in *S. v. Carr,*196 N. C., 129, 144 S. E., 698.

Tbe verdict and judgments will be upheld.

No error.