246 N.C. 332 | N.C. | 1957
The record of case on appeal reveals that there were no objections and exceptions to any evidence offered upon the trial below. And while defendant took exception to denial of motion for judgment as of nonsuit at the close of all the evidence no assignment of error is based thereon, and no attempt is made to present it to this Court. Indeed all assignments of error, other than formal ones, are based upon exceptions to portions of the charge as given, and exceptions to the failure of the trial court to comply with G.S. 1-180.
The Court will now consider such of the assignments of error set forth in brief of appellant as seem to merit express treatment.
Assignment of Error No. 3. Exception No. 3.
This exception is directed to this language used in the charge: “There can be no assent in the crime of an ‘assault with intent to commit rape.’ ” Turning to the record of case on appeal it is seen that this sentence is the concluding part of a paragraph in which the court instructed the jury: “In order to convict a defendant of the charge of assault with intent to commit rape, the evidence should show not only an assault, but that the defendant intended to gratify his passion upon the person of the woman and that he intended to do, so at all event, notwithstanding any resistance on her part.” So read, the meaning of the instruction seems clear. But in any event, the defendant was only
Assignment of Error No. 9. Exception No. 9.
This assignment of error is based upon exception to the court, in stating contentions, referring to the prosecutrix Ruth Wells as the Wells “child.” She testified that she was sixteen years old. Such a person in the ordinary language of laymen is understood to be a child. To refer to her as such creates no more prejudice against defendant than does her appearance upon the witness stand testifying that she is sixteen years of age. The exception is without merit.
Assignments of Error Nos. 24 and 25. Exceptions Nos. 24 and 25.
These assignments of error are based upon exceptions to alleged failure of the trial judge to state in a plain and correct manner the evidence given in the case, and declare and explain the law arising thereon in respect to “assault” and “assault upon a female.”
The court did not submit an issue of simple assault for there was no evidence of this lesser offense. When there is no evidence of guilt of such less crime, the court is not required to charge the jury as to a lesser degree of the crime. S. v. McNeely, 244 N.C. 737, 94 S.E. 2d 853.
The definitions of assault and assault upon a female as given by the trial court appear to be correct and sufficient. S. v. Williams, 186 N.C. 627, 120 S.E. 224. In absence of request for further elaboration, defendant may not now complain. S. v. McLean, 234 N.C. 283, 67 S.E. 2d 75.
Moreover all other assignments of error presented on this appeal have been given careful consideration, and prejudicial error is not made to appear. The jury has accepted the evidence offered by the State, and the verdict rendered is supported by the evidence.
Hence in the judgment from which appeal is taken, there is
No error.
