State v. . Hill
107 S.E. 140
N.C.
1921
Check Treatment
*560 Walker, J.,

after stating the ease: It has been the settled rule of this State, ever since the case of S. v. Massey, 86 N. C., 658, was decided, that in order to convict a defendant on the charge of an assault with intent .to commit rape thfc evidence should show not only -an assault, but that the defendant intended to gratify his passion on the person of the woman, and that he intended to do so, at all events, notwithstanding any resistance on her part. It was held in the Massey case that the evidence there offered by the State was wholly insufficient for a conviction, and the facts were very much stronger than those we find in this record, giving the State the benefit of considering them in the most favorable light for it. The Massey case has been approved several times. S. v. Smith, 136 N. C., 684; S. v. Jeffreys, 117 N. C., 743. It has been said that it is neither charity nor common sense nor law to infer the worst intent which the facts will admit of, the reverse being the true rule both of justice and of law. The guilt of a person is not to be inferred because the facts are consistent therewith, as they must be inconsistent with his innocence. S. v. Massey, 86 N. C., 658; S. v. Adams, 133 N. C., 671; S. v. Jeffreys, supra; S. v. DeBerry, 123 N. C., 703. The defendant entered the room where the prosecutrix and her little brother were sleeping, and did nothing more than place his hands on her forehead and hand. She was awakened and screamed, inquired as to who it was, and was told that it was John Hill, the defendant, whom she had known very well. When she asked him what he was doing in the room and told him to get out, she testified that he left immediately, or, in her own words, “in a jiffy.” He made no demonstration of force or violence against her, and there was nothing said or done by him indicating any intent on his part to do her harm by the use of force, and certainly nothing to show that he came into the room with the intent to ravish her. His sole purpose was. to solicit the gratification of his sexual desires, if he had any evil intent at all. This, of course, was unlawful, and he committed an assault upon her by placing his hands on her forehead and hand, against her will, but this was not the crime charged in the bill of indictment. The specific intent was lacking.

The evidence in Comm v. Merritt, 14 Gray (Mass.), 415; S. c., 77 Am. Dec., 336), was much stronger than is the evidence in this case to show “the intent to ravish,” and yet that Court held that the alleged intent was not shown, but a very different one, and that is the case here.

We cannot grant the nonsuit, as the defendant could have been convicted of an assault the same as if it had been separately charged in an indictment. C S., 4639. Where the assault is upon a woman and the assailant is over eighteen years old, he may be punished as provided by the statute. C. S., 4215.

*561 Tbe Attorney-General states, in bis brief, tbat “be bad been unable to find a case in wbicb tbis Court bas sustained a conviction on evidence altogether as inconclusive as tbe above,” meaning tbe testimony in tbis case. He cites several cases to sustain tbe judgment, but it appears on examining tbem tbat tbey are clearly distinguishable, and one of them (S. v. Page, 127 N. C., 512) is expressly so held to be in S. v. Smith, supra.

Tbe court erred in refusing tbe fourth prayer for instructions and in charging tbat there was evidence of tbe criminal intent, though tbe judge was correct in denying tbe motion for nonsuit, as defendant could have been convicted of an assault upon tbe evidence and under proper instructions to tbe jury.

New trial.