21 S.E.2d 812 | N.C. | 1942
Criminal prosecution upon indictment charging defendant with feloniously assaulting a female "with intent to rape, ravish and carnally know" her "forcibly and against her will." C. S., 4204, and C. S., 4205.
Verdict: Guilty of assault with intent to commit rape.
Judgment: Imprisonment in State Prison at Raleigh, assigned to work under the supervision of the State Highway and Public Works Commission at hard labor and to wear felon stripes for a term of not less than ten nor more than twelve years.
Defendant appeals to Supreme Court and assigns error. The only exception appearing in the record on this appeal is to the refusal of the court to allow defendant's motion to dismiss the action as in case of nonsuit — made in accordance with the provisions of C. S., 4643. *38
Upon the evidence appearing in the record, this exception cannot be sustained, for as stated in S. v. Hill,
However, if there had been a request for instruction to limit the verdict to a less degree of the same crime, C. S., 4640, we are of opinion that upon the evidence appearing in the record$ the court would have erred in refusing to give the instruction in the light of the principles enunciated in S. v. Massey,
In S. v. Massey, supra, Ashe, J., adopting the view expressed in the dissenting opinion of Rodman, J., in S. v. Neely,
In S. v. Hill, supra, Walker, J., stated that the above principle has been settled law in North Carolina ever since the case of S. v. Massey,supra, was decided.
The judgment below is
Affirmed.