State v. . Davenport

*16 Seawell, J. The appeal poses two questions for our decision: First. Was there any evidence to support the conviction? Second, Did the trial judge in his charge satisfy the requirements of G. S., 1-180, in explaining the law and applying it to the evidence? 1. It is perhaps true that upon this particular subject the weight and persuasiveness of the evidence will appear differently to different minds. “Many men of many minds,” says the old copy book. With this phenomenon we obviously have nothing to do; it is purs only to decide whether there is evidence tending to show defendant’s guilt of the offense charged, and it is the province of the jury to pass upon its weight and sufficiency. In the numerous writings and judicial opinions upon the sufficiency of evidence in cases like this, one consideration stands out clearly; the guilt of the defendants or the defendant must be established in almost every case, if at all, by circumstantial evidence. It is never essential to conviction that even a single act of illicit sexual intercourse be proven by direct testimony. While necessary to a conviction that such acts must have occurred, it is, nevertheless, competent to infer them from the circumstances presented in the evidence. Some sense of natural shame, coupled with a fear of public condemnation or, more likely, the fear of the law, drives offenses of this nature into secret places, and usually causes those who commit them to observe the outward forms of decency. We must not forget that jurors are selected from the body of the people because their experiences and observations in the affairs of life have taught them to make reasonable inferences from the testimony and evidence laid before them, and to judge of the probative force of one fact or aggregation of supporting facts in establishing the things sought to be proved, more especially when dealing with matters within the common experience. The evidence which they were called upon to consider in this case might fairly, in the language of Lord Stowell in Loveden v. Loveden, infra, “lead the guarded discretion of a reasonable and just man to the conclusion” of defendant’s guilt. Measured by former standards of this Court, it tended to show a violation of the statute under which Davenport was indicted, and will not be disturbed. S. v. Rhinehart, 106 N. C., 787, 11 S. E., 512; S. v. Mann, 219 N. C., 212, 13 S. E. (2d), 247; S. v. Rountree, 181 N. C., 535, 106 S. E., 669; S. v. Poteet, 30 N. C., 23; S. v. Eliason, 91 N. C., 564; Burroughs v. Burroughs, 160 N. C., 515, 76 S. E., 478; Loveden v. Loveden, 4 Eng. Ecc. R., 461; 1 Am. Jur., sec. 62, p. 705; Underhill, Criminal Evidence, sec. 639. 2. The law is not always to be regarded as a cabalistic utterance, whose inner meaning only the initiate may understand and the professional expert interpret. Not infrequently, especially in respect to the statute law, the language used is so simple, comprehensive and self- *17 definitive that the trial court could find no words more appropriate than those used in the statute in which to couch an explanation. The Court finds itself compelled, after searching through synonyms and substitute phrases, to return to the well considered words of the law as containing the more enlightening expression. S. v. Morgan, 133 N. C., 743, 745, 45 S. E., 1033; S. v. Webster, 218 N. C., 692, 696, 697, 12 S. E. (2d), 272; S. v. Puckett, 211 N. C., 66, 74, 75, 189 S. E., 183. See S. v. Gore, 207 N. C., 618, 178 S. E., 209; S. v. Wilcox, 132 N. C., 1120, 44 S. E., 625. “Lewdly and lasciviously cohabit” plainly implies habitual intercourse, in the manner of husband and wife, and together with the fact of not being married to each other, constitutes the offense, and in plain words draws the distinction between single or non-habitual intercourse and the offense the statute means to denounce. In many instances, of course, the law cannot be regarded as self-explanatory in all particulars, and judicial interpretation becomes a requirement of the law. G. S., 1-180. "What situations demand an explanation of the law through proper instruction to the jury without special prayer, and what explanations may be regarded as matters of subordinate elaboration, must be referred to the history of the subject as developed in our Eeports, rather than to any fixed rule. New situations must be dealt with as they arise. ¥e can only say here that the statute itself employs simple and understandable terms which directly define the offense, and we think the instruction was comprehensible. If the explanation given by the Court in these simple terms was not thought to be sufficient, it became the privilege of defense counsel to ask for further instructions. We regard the exception as untenable. The further objection to the matter bracketed in the exception to the charge, that is, that the trial court referred to the defendant Davenport as, singly, the person on trial, is not meritorious. The record shows that Lois Wright did not prosecute her appeal in the Superior Court, and Davenport, therefore, alone was on trial. Nor is this a case in which both defendants must be convicted of mutual intent to violate the law before conviction of one of them can be sustained. S. v. Cutshall, 109 N. C., 764, 14 S. E., 107; S. v. McDuffie, 107 N. C., 885, 12 S. E., 83. For these reasons, we find that there was, in the course of the trial, No error.