State v. Green
| Decision Date | 16 October 1957 |
| Docket Number | No. 289,289 |
| Court | North Carolina Supreme Court |
| Parties | STATE, v. Joe GREEN. |
George B. Patton, Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for the State.
W. H. Strickland, Lenoir, for defendant, appellant.
The defendant assigns as error the denial of his motion for judgment of nonsuit renewed at the close of all the evidence. It would benefit no one to stain the pages of our Reports with a recital of the sordid details of the evidence. Suffice it to say that there is competent, substantial evidence, which taken in the light most favorable to the State, tends to show that the defendant, a married man living with his wife and child, assaulted a female child 16 years of age, and ravished and carnally knew her by force and against her will. The court properly submitted the case to the jury. State v. Reeves, 235 N.C. 427, 70 S.E.2d 9. The defendant's evidence tends to show intercourse by consent. Conflicts in the testimony, the weight of the evidence, the credibility of witnesses are all matters for the jury, not the court. State v. Hovis, 233 N.C. 359, 64 S.E.2d 564.
The defendant assigns as error that the court in its charge submitted to the jury the question of the defendant's guilt of the crime of an assault with intent to commit rape, and his guilt of the crime of assault upon a female, because such a question 'was not before the court,' because of the solicitor's statement at the beginning of the trial that he would ask for a verdict of guilty of rape with a recommendation of life imprisonment, or guilty of an attempt to commit rape, and further because there is a distinction between the attempt to commit rape and an assault with intent to commit rape, and further because the evidence shows the defendant is guilty of rape or not guilty. This Court said in State v. Hewett, 158 N.C. 627, 74 S.E. 356, 357, a statement quoted with approval in state v. Adams, 214 N.C. 501, 199 S.E. 716: See 75 C.J.S. Rape § 21 p. 488.
The indictment properly charges the felony and crime of rape, and also an assault upon a female by a male person over 18 years of age. An assault with intent to commit rape is a lesser degree of the felony and crime of rape. It is well settled with us that an indictment for rape includes an assault with intent to commit rape. G.S. § 15-170; State v. Roy (State v. Slate), 233 N.C. 558, 64 S.E.2d 840. G.S. § 15-169 provides that 'on the trial of any person for rape, or any felony whatsoever, when the crime charged includes an assault against the person, it is lawful for the jury to acquit of the felony and to find a verdict of guilty of assault against the person indicted.' In State v. Roy (State v. Slate), supra, the indictment charged rape. The jury found the defendant Roy fuilty of an assault with intent to commit rape, and the defendant Slate guilty of an assault on a female. This Court fund no error in the trial.
The instant case is not one where the uncontradicted evidence shows that the crime of rape has been committed like State v. Brown, 227 N.C. 383, 42 S.E.2d 402, where the defense was insanity, and State v. Smith, 201 N.C. 494, 160 S.E. 577, where the defense was an alibi, in which cases it was held that it was not requisite to charge upon any lesser offenses. The State's evidence in this case, if believed to its fullest extent, established the crime of rape. The defendant testified the intercourse was with her consent. The evidence was conflicting in other respects. It would have been error for the court not to have charged the jury on the lesser offenses, as it did. State v. Williams, 185 N.C. 685, 116 S.E. 736. The solicitor's statement at the beginning of the trial did not relieve the court of its mandatory duty under G.S. § 1-180 to declare and explain to the jury the law arising on the evidence given in the case.
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...lawful for the jury to acquit of the felony and to find a verdict of guilty of assault against the person indicted.' State v. Green, 246 N.C. 717, 719, 100 S.E.2d 52, 54. See also State v. Williams, 185 N.C. 685, 116 S.E. 736. G.S. § 15-169 was enacted in 1885. G.S. § 15-170 (1891) provides......
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