#### STATE v. RALPH VERNON LITTERAL and MARVIN CLAUDE BELL.

(Filed 5 June, 1947.)

1. Criminal Law § 12d—

Where persons held by Federal officers on a Federal charge are released by order of the District Judge to the sheriff for trial in the State Court, *held,,*upon obtaining custody through the comity and courtesy existing between the courts of the two jurisdictions, the State Court acquired jurisdiction.

2. Jury § 8—

When the jury is drawn and summoned and the grand jury selected and impaneled before the effective date of the Amendment of 1946, the absence of women on the jury panel is not a défect, even though the bill of indictment is returned after the Amendment’s effective date, since the Amendment merely makes women eligible for jury service and time must be allowed to implement the constitutional provision.

3. Jury §§ 2, 3: Indictment § 13—

A motion to quash the indictment on the ground that no women were summoned to serve on the jury is untenable when it appears that defendants did not exhaust their peremptory challenges and thus that they obtained a jury acceptable to them.

4. Constitutional Law § S3—

Male defendants are not prejudiced by the absence of women from the jury panel.

*5285. Criminal Law § 42d—

Where the credibility of prosecutrix’ testimony is put in issue by the plea of not guilty and by cross-examining her, testimony tending to support her version of the occurrences attendant the crime is competent for the purpose of corroboration.

6. Criminal Law § 35—

Where prosecutrix testifies that she was assaulted and left in distress in a field, testimony of her exclamatory cry for help is competent.

7. Criminal Law § 42d—

Prosecutrix’ statement to officers, giving her version of the crime, reduced to writing and signed by her, is competent for the purpose of corroborating her testimony.

8. Criminal Law § 48f—

Where prosecutrix’ written statement is competent for the purpose of corroborating her testimony and is admitted for this purpose, if some parts of the statement do not tend to corroborate her testimony, it is incumbent on defendants to move to strike or exclude such parts, and a general objection to the statement as a whole is ineffective.

9. Criminal Law § 42d—

A witness testified he saw defendants in an automobile on the afternoon and evening before the crime was committed, and made a memorandum describing the car and the number of its license plate. Officers testified that they found the license plate in a stove pipe in the loft of a bam at the home of one of defendants, and made a memorandum thereof. *Held:*The memoranda were competent for the purpose of corroborating the witnesses.

10. Criminal Law § 33—

The absence of a finding of record that the confession of a defendant was voluntary, is not fatal, since the court’s ruling admitting the confession in evidence must, of necessity, have been predicated upon such finding.

11. Same—

Nothing else appearing, a confession will be presumed voluntary, and the fact that it is made in the presence of armed officers after defendant’s arrest does not render it incompetent.

12. Criminal Law § 39b—

The relationship of patient and physician within the purview of G. S., 8-53, does not exist between a defendant and an alienist examining him in regard to his sanity.

13. Same—

Where a defendant offers testimony of an alienist in support of his plea of mental irresponsibility, he waives any confidential relationship and the State may cross-examine such witness concerning all matters covered in the examination-in-chief.

*52914. Criminal Law § 29b—

Where an alienist has testified as to the mental irresponsibility of defendant based upon his examination of defendant, the fact that the cross-examination of the witness in regard to the basis of his opinion incidentally discloses defendant’s past criminal record does not render the cross-examination incompetent, since the matter is within the proper scope of the cross-examination.

15. Criminal Law § 53k—

The court is not required to give all the contentions, but only to state them as fairly for one side as for the other.

16. Criminal Law § 53d—

An instruction that the jury should be governed by their recollection of the evidence in arriving at a verdict, is without error.

17. Criminal Law § 54g—

The relationship of patient and physician within the purview of G-. S., proper for the court to refuse to accept it and to instruct the jury again as to the form of the permissible verdicts, and such defendant cannot complain that the jury shortly thereafter rendered a verdict in proper form adverse to him.

Appeal by defendants from *Sink, J.,*at January Special Term, 1947, 'Wilkes.

No error.

Criminal prosecution under bill of indictment which, charges the capital felony of rape.

The evidence for the State tends to establish the following facts:

Prosecutrix lives at Pleasant Hill, a settlement on the Traphill road about four miles from the center of Elkin. On the evening of 23 August 1946 she and two girl friends, accompanied by three boys, went to a watermelon feast in or near Elkin, arriving about 7 :00 p.m. They returned to the cab station at Elkin, a bus stop, too late to “catch” a bus. They then went to a movie. They returned to the bus stop and the three girls boarded a bus about 11:05 p.m. to go home. Prosecutrix lived about 100 yards beyond the end of the run of this bus where it turned around and returned to town. The girls noticed á' car with its lights off trailing the bus. Prosecutrix’s two girl companions left the bus sometime before it reached the end of its run. The bus, having reached its terminus, drove into a side road to turn around. The trailing car turned on its lights and passed, went up the road, and turned around between the bus and the home of the prosecutrix. It drove up. beside prosecutrix who had left the bus and started home. One of the two occupants got out. She started to run into a neighbor’s yard. The driver called to the other, “Grab her.” He chased her, grabbed her, put his hands over her mouth and pulled her into the car. During this time she screamed and attempted to get free but was thrown down to the floor *530of tbe car and tbe one bolding ber sat upon ber and beld bis band over ber mouth. Tbe car drove off and sbe was blindfolded. Sbe asked them what tbey were going to do to ber, and one replied tbat tbey were going to assault ber. Tbey tried to make ber drink liquor. Some distance away sbe was taken out of tbe car and tbe driver left for a while. During tbis time sbe attempted to get away. Tbe car returned and sbe was again placed therein. Thereafter sbe was criminally assaulted several times by each of tbe occupants and was subjected to other treatment too vile and repulsive to repeat. Sbe was likewise beaten and one of tbe occupants said tbat be was going to cut bis initials on ber leg and made a mark several inches long. Finally tbey drove into Tennessee, put tbe prosecutrix off in a corn field, threatened to kill ber if sbe looked around, and drove away. Sbe went to a borne nearby about 7 :00 a.m. where sbe was treated, given food, and later carried to town and placed on a bus for borne. There was evidence of other occurrences on tbe trip it is unnecessary to repeat. There is likewise evidence in tbe record amply sufficient to identify tbe two defendants as tbe occupants of tbe car and tbe assailants of tbe prosecutrix.

Thereafter tbe defendants were apprehended by Federal and State officials and were first beld by tbe Federal authorities on a charge of kidnapping. Tbe judge of tbe Middle District entered an order 6 November 1946 releasing tbe defendants to tbe sheriff of Wilkes County for trial in tbe State court on tbe charge of rape.

While tbe defendants were in tbe custody of tbe officers tbey made statements in tbe nature of confessions. Tbe statements were in tbe main in substantial accord with the testimony of tbe prosecutrix.

When the case came on for trial in tbe court below tbe defendants moved to quash tbe bill of indictment (1) for tbat tbe Federal court bad no right to release tbe defendants to tbe State court, and therefore the State court bad no jurisdiction to try tbe defendants on tbe capital felony charged; and (2) fór tbat no women were summoned to serve at tbe term of court at which tbey were placed on trial. Tbe motion was overruled.

Tbe defendant Bell offered no testimony. Tbe defendant Litteral offered testimony tending to show tbat be is of such low mentality tbat be is incapable of distinguishing right from wrong. This evidence was sharply controverted by testimony offered by tbe State. There was a verdict of guilty of rape as charged in tbe bill of indictment as to each defendant. Judgment of death was pronounced as to each and defend-’ ants appealed.

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

*531*Trivette, Holshouser & Mitchell and Hayes & Hayes for defendant Bell.*

*Fred 8. Hutchins for defendant Littered.*

Barnhill, J.

The defendants advance no argument and cite no authority to sustain their contention that the court below was without jurisdiction. The defendants, it is true, were first held by the Federal authorities on the charge of kidnapping. It may be that so long as they were in the custody of Federal officials the State was powerless to proceed. Even so, there is no provision of law, so far as we can ascertain, which denied the district judge the right to surrender the custody of the defendants to the State authorities for trial in the State court. It was a matter of comity and courtesy existing between the courts of the two jurisdictions and rested in the sound discretion of the district judge.

The State court, having obtained custody, of course had jurisdiction to proceed. *S. v. Harrison,*184 N. C., 762, 114 S. E., 830; *S. v. Davis,*223 N. C., 54, 25 S. E. (2d), 164; *S. v. Inman,*224 N. C., 531, 31 S. E. (2d), 641; 14 A. J., 435.

Likewise the contention that the absence of women on the jury panel constitutes a fatal defect in the proceeding is without merit. The constitutional amendment adopted in 1946 merely makes women eligible for jury service. Before it becomes of practical application it needs must be implemented by legislation prescribing qualifications and manner of selection of women for jury service. See Chap. 1007, Session Laws, 1947. The panel was drawn and summoned and the grand jury was selected and impaneled before the effective date of the amendment and the bill was returned the day thereafter. Furthermore, so far as the record discloses the petit jury was selected without the use of any of the twenty-eight peremptory challenges available to defendants. Thus they obtained a jury acceptable to them. *S. v. Koritz, post,*552.

The exception is without merit for the further reason the defendants are not of the same class or sex as those claimed to have been wrongfully excluded. Hence no discrimination is made to appear. *S. v. Sims,*213 N. C., 590, 197 S. E., 176; *McKinney v. Wyoming,*30 Pac., 293, 16 L. R. A., 710; *U. S. v. Chaplin,*54 Fed. Supp., 682.

*Ballard v. U. S.,*67 S. Ct., 261 (deC. Dec. 9, 1946), cited and relied on by defendants, discusses the method of selecting Federal petit and grand juries in States in which women are eligible for jury service. It is not controlling here.

Prosecutrix testified that she was kept from her home all night, maltreated, misused, criminally assaulted, left alone and in distress in the nighttime in a corn field in Tennessee. Her testimony was challenged and its credibility put at issue by the pleas of not guilty and by extended cross-examination. Hence the testimony of her mother that prosecutrix *532did not return borne tbat nigbt and sbe, tbe witness, so reported to tbe officers and tbe radio station was competent in support of ber testimony. *S. v. Brabham,*108 N. C., 793; *S. v. Bethea,*186 N. C., 22, 118 S. E., 800; *S. v. Brodie,*190 N. C., 554, 130 S. E., 205; *S. v. Scoggins,*225 N. C., 71; *S. v. Walker,*226 N. C., 458.

To like effect was tbe testimony of tbe witnesses from Tennessee wbo rendered ber assistance, fed ber, and helped ber return borne. Her call for belp and exclamation, “Ob, God, will somebody belp me,” was a spontaneous utterance prompted by and tending to sbow ber need of belp wbicb was a result of tbe wicked acts of those wbo bad kidnapped ber. This testimony tends to complete tbe picture of wbat happened that nigbt. Exception thereto cannot be sustained. *S. v. Hawkins,*214 N. C., 326, 199 S. E., 284, and cases cited; *S. v. Draughon,*151 N. C., 667, 65 S. E., 913.

Tbe prosecutrix also made a statement to tbe officers wbicb was reduced to writing and signed by ber. Although sbe, while on tbe stand, did not refer to this writing, there was other evidence tending to identify it as ber written statement. Tbe court admitted it as corroboratory testimony and was careful to instruct tbe jury fully as to tbe nature of tbe testimony and tbe manner in wbicb it should be considered. It was competent for tbe purpose for wbicb it was offered and was properly admitted.

It may be tbat there are some parts of this written statement wbicb do not tend to corroborate tbe witness. Even so, tbe defendants made no motion to strike or to exclude such parts of tbe statement as might not be competent for tbat purpose. They were content to enter a general objection to tbe statement as a whole. This did not require tbe presiding judge to sift tbe writing and eliminate therefrom any part thereof wbicb in bis opinion might not tend to corroborate. If tbe defendants objected to tbe statement in part and not as a whole they should have so indicated by proper motion or exception. *S. v. English,*164 N. C., 497, 80 S. E., 72; *S. v. Wilson,*176 N. C., 751, 97 S. E., 496; *S. v. Shepherd,*220 N. C., 377, 17 S. E. (2d), 469; *S. v. Britt,*225 N. C., 364.

One Reavis, witness for tbe State, noticed tbe two defendants about 5 :00 or 5 :30 of tbe afternoon preceding tbe assault, near tbe cab station. They were on a 1940 Ford coach. He saw them again about 10 :30 tbat nigbt. He noted on bis cab book a description of tbe automobile and tbe number of its license plate. On tbe stand be testified concerning the facts disclosed by this memorandum. Next day tbe officers investigating tbe crime found tbe license plate in a stove pipe in tbe loft of a barn at defendant Bell’s borne. They made a memorandum thereof. Tbat these memoranda were competent as tending to corroborate these witnesses would seem to be too clear to require discussion. Stansbury, N. C. Evidence, Sec. 51, p. 81; *S. v. Scoggins, supra; S. v. Bethea, supra.*

*533The defendant Litteral was first apprehended. On 30 August be signed a statement -in the nature of a confession. This statement was offered and admitted in evidence as against bim only without objection.

Thereafter, about midnight, 2 September, officers apprehended and arrested Eell at his home. He made a statement which was reduced to writing and signed by him. When this writing was identified by one of the witnesses and offered in evidence Eell objected. Thereupon, the court, of its own motion, had the jury retire and offered this defendant an opportunity to challenge the voluntariness on *voir dire.*Upon the close of the *voir dire*the court overruled the objection, had the jury return, and admitted the statement in evidence. Exception thereto cannot be sustained.

While it is the better practice for a judge on a *voir dine*respecting an alleged confession to make his finding as to the voluntariness thereof and enter it in the record, a failure so to do is not fatal. Voluntariness is the test of admissibility, and this is for the judge to decide. His ruling that the evidence was competent of necessity was bottomed on the conclusion the confession was voluntary. *S. v. Hawkins, supra.*

There is nothing in this record upon which a contrary conclusion could be based. Confessions, nothing else appearing, are presumed to be voluntary. *S. v. Bennett,*226 N. C., 82; *S. v. Wise,*225 N. C., 746; *S. v. Mays,*225 N. C., 486; *S. v. Grass,*223 N. C., 31, 25 S. E. (2d), 193; *S. v. Wagstaff,*219 N. C., 15, 12 S. E. (2d), 657; *S. v. Hudson,*218 N. C., 219, 10 S. E. (2d), 730; *S. v. Murray,*216 N. C., 681, 6 S. E. (2d), 513. They are not rendered incompetent by reason of the fact the defendant was at the time under arrest or in jail or in the presence of armed officers. *S. v. Thompson,*224 N. C., 661, 32 S. E. (2d), 24; *S. v. Wagstaff, supra; S. v. Richardson,*216 N. C., 304, 4 S. E. (2d), 852; *S. v. Murray, supra; S. v. Smith,*213 N. C., 299, 195 S. E., 819; *S. v. Exum,*213 N. C., 16, 195 S. E., 7; *S. v. Caldwell,*212 N. C., 484, 193 S. E., 716; *S. v. Stefanoff,*206 N. C., 443, 174 S. E., 411; *S. v. Rodman,*188 N. C., 720, 125 S. E., 486; *S. v. Newsome,*195 N. C., 552, 143 S. E., 187.

The defendant Litteral tendered Dr. Kelly, ar£ alienist and teacher of neuropsychiatry, as a witness in his behalf. This witness testified that the defendant, in his opinion, is mentally incapable of distinguishing-right from wrong. He based that opinion in part on information received from Litteral during a two-hour conference with him. The court permitted the solicitor to cross-examine in respect to statements made by Litteral for the purpose of testing the soundness of and impeaching the conclusion made by the witness. This evidence was not incompetent by reason of the physician-patient relationship. G. S., 8-53; *Smith v. Lumber Co.,*147 N. C., 62; *S. v. Newsome, supra;*Stansbury, N. C. Evidence, Sec. 63, p. 110. Furthermore, when the defendant offered the *534doctor as a witness be waived tbe confidential relationship, if any existed, and opened tbe door for cross-examination concerning all matters about wbicb tbe witness bad testified. *Jones v. Marble Co.,*137 N. C., 237.

Neither was it incompetent for tbe reason it involved former conduct of tbe defendant and tended to show a criminal record. Tbe doctor gave bis opinion as to tbe mental capacity of tbe defendant. Tbe solicitor bad a right to inquire into tbe basis of that opinion. Tbe cross-examination was confined to that question. That it incidentally developed facts concerning tbe defendant’s bad record is a risk be took when be tendered tbe witness for examination-in-chief. *Milling Co. v. Highway Comm.,*190 N. C., 692, 130 S. E., 724; *S. v. Beal,*199 N. C., 278 (298), 154 S. E., 604; *S. v. Cox,*201 N. C., 357, 160 S. E., 358; *S. v. Nelson,*200 N. C., 69, 156 S. E., 154; *S. v. Ray,*212 N. C., 725, 194 S. E., 482; *Bank v. Motor Co.,*216 N. C., 432, 5 S. E. (2d), 318; *Foxman v. Hanes,*218 N. C., 722, 12 S. E. (2d), 258; *S. v. Shepherd, supra.*

It is not amiss to note in this connection that tbe intelligent manner in wbicb this defendant answered tbe questions of tbe witness and detailed occurrences in bis life from childhood gives reason to understand why tbe jury accepted tbe testimony of tbe State’s witnesses as to bis sanity rather than that of tbe alienist and demonstrates tbe justice of tbe rule wbicb permits tbe line of cross-examination conducted by tbe solicitor.

There are a number of exceptions to tbe charge of tbe court. We have examined each one of them with care without regard to whether they were brought forward and discussed in tbe brief. No one of them points to cause for disturbing tbe verdict.

Tbe court correctly charged tbe law of tbe case. It was not required to give all tbe contentions. It was under tbe duty only to state them as fairly for tbe one side as for tbe other. *S. v. Colson,*222 N. C., 28, 21 S. E. (2d), 808; *Trust Co. v. Ins. Co.,*204 N. C., 282, 167 S. E., 854; *Cab Co. v. Sanders,*223 N. C., 626, 27 S. E. (2d), 631; *S. v. Friddle,*223 N. C., 258, 25 S. E. (2d), 751.

Its statement that tbe jury in arriving at a verdict must be governed by their recollection of tbe testimony is in accord with tbe authorities. *S. v. Cameron,*223 N. C., 464, 27 S. E. (2d), 84; *S. v. Harris,*213 N. C., 648, 197 S. E., 156.

Tbe jury came into court to report agreement and returned a verdict as to defendant Litteral of guilty as charged in tbe bill of indictment. As they were about to return their verdict as to defendant Bell tbe court interrupted them, informed them that it could not accept tbe verdicts tendered and instructed them that they should spell out tbe verdicts which should be: guilty of rape as charged in tbe bill of indictment, or, guilty of assault with intent to commit rape, or, not guilty. Tbe jury shortly thereafter returned tbe verdicts wbicb appear of record. Tbe defendant Bell excepts. Tbe assignment of error bottomed on this excep*535tion is untenable. *S. v. Wilson,*218 N. C., 556, 11 S. E. (2d), 567; *S. v. Perry,*225 N. C., 174; *S. v. Bishop,*73 N. C., 44; *S. v. Brown,*204 N. C., 392, 168 S. E., 532; *S. v. Noland,*204 N. C., 329, 168 S. E., 412; *S. v. Godwin,*138 N. C., 582.

After a careful examination of all tbe exceptions in tbe record we are persuaded tbe defendants were accorded a fair trial, free of prejudicial error. Hence tbe judgments must be affirmed as to botb defendants.

No error.