State v. Johnson, 730.

• Decision Date: 05 June 1947
• Docket Number: No. 730.,730.
• Parties: STATE. v. JOHNSON.
• Court: North Carolina Supreme Court

227 N.C. 587
42 S.E.2d 686

STATE.
v.
JOHNSON.

No. 730.

Supreme Court of North Carolina.

June 5, 1947.

[42 S.E.2d 685]

Appeal from Superior Court, Forsyth County; J. H. Clement, Judge.

George W. Johnson was indicted for the crime of assault upon a certain named female with felonious intent, by force and against her will, to ravish and carnally know, and he was found guilty, and a judgment of imprisonment was pronounced, and he appeals.

New trial granted.

Criminal prosecution upon indictment charging defendant with crime of assault upon a certain named female with felonious intent, by force and against her will, to ravish and carnally know.

Verdict: Guilty.

Judgment: Imprisonment pronounced.

Harry M. McMullan, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes and Ralph M. Moody, Asst. Attys. Gen, for the State.

Phin Horton, J. Erie McMichael and H. Bryce Parker, all of Winston-Salem, for defendant-appellant.

WINBORNE, Justice.

On this appeal defendant presses for error the refusal of the court to grant his motion for judgment as of nonsuit entered at close of State's evidence, and renewed at the close of all the evidence, pursuant to provisions of G. S. § 15-173. These motions, being general, may not be sustained. Since the prosecution is upon an indictment charging an assault with intent to commit rape, which is a felony, G.S. § 14-1 and G.S. § 14-22, it is lawful for the jury to acquit of the felony and to find a verdict of guilty of an assault upon a female if the evidence warrants such a finding. G.S. § 15-169. Therefore, there being sufficient evidence to support at least a verdict of guilty of an assault upon a female, the motion to dismiss under G.S. § 15-173 was properly denied. See State v. Jones, 222 N.C. 37, 21 S.E.2d 812. Compare State v. Gay, 224 N.C. 141, 29 S.E.2d 458.

However, defendant's exceptions to portions of the charge of the court to the jury are well taken.

One exception has this setting, and is as follows: Opening the charge by saying that the bill of indictment charges defend-

[42 S.E.2d 686]

ant with an assault with intent to commit rape, and after enumerating various kinds of assaults, including that with which defendant is charged, and instructing the jury that the gravamen of an assault is an intentional attempt, by violence, to do injury to the person of another, the court continued as follows: "There has been evidence offered in this case by both the State and the defendant. The defendant contends that he is not guilty; the State contends...