State v. . Jones
21 S.E.2d 812
N.C.
1942
Check Treatment
Winborne, J.

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 tbe evidence appearing in tbe record, tbis exception cannot be sustained, for as stated in S. v. Hill, 181 N. C., 558, 107 S. E., 140, “We cannot grant tbe nonsuit, as tbe defendant could bave been convicted of an assault tbe same as if it bad been separately charged in an indictment.” C. S., 4639. See also S. v. Holt, 192 N. C., 490, 135 S. E., 324.

However, if there bad been a request for instruction to limit tbe verdict to a less degree of tbe same crime, C. S., 4640, we are of opinion that upon tbe evidence appearing in tbe record, tbe court would bave erred in refusing to give tbe instruction in tbe light of tbe principles enunciated in S. v. Massey, 86 N. C., 658, and approved and followed in S. v. Jeffreys, 117 N. C., 743, 23 S. E., 175; S. v. Smith, 136 N. C., 684, 49 S. E., 334; and S. v. Hill, supra. See also S. v. Allen, 186 N. C., 302, 119 S. E., 504.

In S. v. Massey, supra, Ashe, J., adopting tbe view expressed in tbe dissenting opinion of Rodman, J., in S. v. Neely, 74 N. C., 425, and speaking for tbe Court, said: “In order to convict a defendant on tbe charge of assault with intent to commit rape, tbe evidence should show not only an assault, 'but that tbe defendant intended to gratify bis passion on tbe person of tbe woman, and that be intended to do so, at all events, notwithstanding any resistance on her part.”

In S. v. Hill, supra, Walker, J., stated that tbe above principle has been settled law in North Carolina ever since tbe case of S. v. Massey, supra, was decided.

Tbe judgment below is

Affirmed.