State v. Gay

• Decision Date: 22 March 1944
• Docket Number: 221.
• Parties: STATE v. GAY.
• Court: North Carolina Supreme Court

29 S.E.2d 458

224 N.C. 141

STATE v. GAY.

No. 221.

Supreme Court of North Carolina

March 22, 1944

In the trial court the named female person testifying as a witness for the State, narrated these facts On November 17, 1943, she, a married woman, was residing in the city of Goldsboro, North Carolina. About ten minutes before eleven o'clock on the night of that date while en route from a nearby military camp where her husband was stationed, she alighted from a bus about four city blocks from, and started walking to, her place of abode. As she was walking alone along a public street about one hundred and fifty feet from her destination, a man, whom she identified as the defendant, came from the middle of the street, where she first saw him, alongside of her, and, exposing his person by the light of a flashlight, accosted her with an indecent question, prefaced with the words, 'Pardon me, Miss, may I * * *'. She testified further: 'If he had started towards me he would have had to take three or four steps to get to me. I screamed and ran. He chased me. He must have run about 10 or 11 steps * * * I ran home * * * The man never put his hands on me, never touched me * * * He never attempted to put his hands on me, because I turned and ran * * *'. The State offered evidence in corroboration of her testimony, and as to her identification of defendant.

On the other hand, defendant, as witness for himself, denied that he was the man to whom the State's witness referred and testified and offered testimony of others that he was elsewhere at the time of the alleged offense as described in the State's evidence.

Verdict: Guilty as charged in the bill of indictment.

Judgment: That the defendant be confined in the State's Prison for a term of not less than three nor more than five years.

Defendant appeals therefrom to Supreme Court and assigns error.

Langston, Allen & Taylor and N. W. Outlaw, all of Goldsboro, for appellant.

Harry M. McMullan, Atty. Gen., and George B. Patton and Hughes J. Rhodes, Asst. Attys. Gen., for the State.

WINBORNE Justice.

At the close of the State's evidence and again at the close of all the evidence defendant demurred thereto and moved for judgment of dismissal or nonsuit, G.S. § 15-173, and for a directed verdict. Defendant, having reserved exceptions to the rulings of the court in denying these motions, stresses for error the refusal of the court to direct the jury that there is not sufficient evidence to convict defendant of the offense laid in the bill of indictment, and to limit the verdict to an assault. G.S. § 15-169, formerly C.S. § 4639.

The statute, 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 if the evidence warrants such finding. See State v. Smith, 157 N.C. 578, 72 S.E. 853. An assault with intent to commit rape is a felony. G.S. §§ 14-1, and 14-22. And 'in order to convict a defendant on 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 on the person of the woman, and that he intended to do so, at all events, notwithstanding any resistance on her part.' State v. Massey, 86 N.C. 658, 41 Am.Rep. 478; State v. Jeffreys, 117 N.C. 743, 23 S.E. 175; State v. Hill, 181 N.C. 558, 107 S.E. 140. See also State v. Jones, 222 N.C. 37, 21 S.E.2d 812, and cases cited.

Applying these principles, the evidence presented in the record on this appeal, taken in the light most favorable to the State, is insufficient to support a verdict of guilty of an assault with intent to commit rape. While the evidence shows defendant solicitous to gratify his passion on the person of the woman, it is wholly lacking in the intention 'to do so, at all events, nowithstanding any resistance on her part'. Yet the evidence in the record would warrant the finding of a verdict of guilty of an assault upon a female person, G.S. § 15-169, G.S. § 14-33; State v. Smith, supra, State v. Williams, 186 N.C. 627, 120 S.E. 224, and cases cited, or of a simple assault. State v. Hampton, 63 N.C. 13; State v. Rawles, 65 N.C. 334; State v. Jeffreys, supra; State v. Williams, supra.

Therefore concededly, even though the evidence is insufficient to support a verdict of guilty of an assault with intent to commit a rape, the motions for judgment of dismissal or nonsuit could not be granted as the defendant could have been convicted of an assault. G.S. § 15-169, State v. Hill, supra, State v. Holt, 192 N.C. 490, 135 S.E. 324, ...