State v. Britt, 671

• Decision Date: 24 May 1967
• Docket Number: No. 671,671
• Citation: 270 N.C. 416,154 S.E.2d 519
• Parties: STATE, v. Jerry Wynn BRITT.
• Court: North Carolina Supreme Court

Page 519

154 S.E.2d 519

270 N.C. 416

STATE, v. Jerry Wynn BRITT.

No. 671.

Supreme Court of North Carolina.

May 24, 1967.

Nance, Barrington, Collier & Singleton, by Carl A. Barrington, Jr., Fayetteville, for defendant appellant.

T. W. Bruton, Atty. Gen., Millard R. Rich, Jr., Asst. Atty. Gen., for the State.

PLESS, Justice.

The defendant devotes a substantial portion of his brief to the exceptions taken because the Court denied his motion for judgment as of nonsuit at the close of the plaintiff's evidence and at the end of all the evidence. Whether there was sufficient evidence to sustain a verdict of guilty of an assault with the intent to commit rape is not now relevant, since the defendant was convicted only of a misdemeanor: an assault on a female, he being a male person more than eighteen (18) years of age. The evidence given in the statement of facts shows that the defendant hit the sixteen year old girl on her neck and that he slapped her when she screamed. This, of course, constitutes an assault. The defendant argues that Sue had 'placed herself in a position of leading and encouraging the defendant, Jerry Wynn Britt, into amorous advances which she now claims amount to an assault,' and further contends that 'none of the required elements for a conviction of assault on a female, to wit: that the defendant threatened or menaced the prosecuting witness in such a way as to cause her to go where she would not otherwise have gone or to leave a place where she had a right to be.' We know of no such requirement in the law of assault. A battery always includes an assault, and is an assault whereby any force is applied, directly or indirectly, to the person of another. State V. Sudderth, 184 N.C. 753, 114 S.E. 828, 27 A.L.R. 1180. Probably the most succinct definition is 'an assault is an intentional attempt, by violence, to do injury to the person of another.' State v. Davis, 23 N.C. 125. This definition has been cited by this Court dozens of times and embodies all the necessary elements of the offense. It is applicable to the evidence in this case.

The defendant also takes exception to the charge in that it omits a statement that a reasonable doubt may arise out of the insufficiency of the evidence. However, the Court said "beyond a reasonable doubt' * * * does not mean a vain, imaginary or fanciful doubt, but it means a sane, rational doubt. It means that you, the jury, must be fully satisfied or entirely convinced of the truth of the charge against this defendant.' And also, 'the burden of proof is on the State and remains on the State from the beginning to the end of the trial. It does not shift at any stage of the trial to the defendant, and the defendant is not required to disprove the State's case; and the State must fail if from the whole of the evidence you, the jury, are not satisfied beyond a reasonable doubt that the defendant is guilty of every element of the offense with which he is charged.'

In State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133, Denny, J., later C.J., said that a definition of reasonable doubt, 'without adding 'or from the lack or insufficiency of the evidence' or some equivalent expression, it is error. But, whether or not such error will be considered sufficiently prejudicial to warrant a new trial will be determined by the evidence involved. Here the State's evidence was direct and amply sufficient to support the verdict. No circumstantial evidence was before the jury, nor could there have been any doubt as to the sufficiency of the State's evidence, if believed, to warrant a conviction.'

When a sixteen year old child testifies that a man nearly twice her age, and experienced in the ways of the world, takes her to a secluded part of a country road and there slaps and beats her and holds her down while he gets on top of her and attempts to have sexual relations with her by force, we hold that the above statement from the Hammonds case is applicable, that the State's evidence 'was direct and amply sufficient to support the verdict,' and that the omission was...