State v. Jones, 3.
| Decision Date | 23 September 1942 |
| Docket Number | No. 3.,3. |
| Citation | 21 S.E.2d. 812,222 N.C. 37 |
| Court | North Carolina Supreme Court |
| Parties | STATE. v. JONES. |
Appeal from Superior Court, Beaufort County; Clawson L. Williams, Judge.
John Paul Jones was convicted of assault with intent to commit rape, and he appeals.
Affirmed.
Criminal prosecution upon indictment charging defendant with feloniously assaulting a female "with intent to rape, ravish and carnally know" her "forcibly and against her will". C.S. 4204 and C.S. 4205.
Verdict: Guilty of assault with intent to commit rape.
Judgment: Imprisonment in State Prison at Raleigh, assigned to work under the supervision of the State Highway and Public Works Commission at hard labor and to wear felon stripes for a term of not less than ten nor more than twelve years.
Defendant appeals to Supreme Court and assigns error.
Carter & Carter, of Washington, for appellant.
Harry M. McMullan, Atty. Gen, and George B. Patton and Hughes J. Rhodes, Asst. Attys. Gen, for the State.
The only exception appearing in the record on this appeal is to the refusal of the court to allow defendant's motion to dismiss the action as in case of nonsuit, -- made in accordance with the provisions of C.S. 4643.
Upon the evidence appearing in the record, this exception cannot be sustained, for as stated in State v. Hill, 181 N.C. 558, 107 S.E. 140, 141, "We cannot grant the nonsuit, as the defendant could have been convicted of an assault, the same as if it had been separately charged in an indictment". C.S. 4639. See also State v. Holt, 192 N.C. 490, 135 S.E. 324.
However, if there had been a request for instruction to limit the verdict to a less degree of the same crime, C.S. 4640, we are of opinion that upon the evidence appearing in the record, the court would have erred in refusing to give the instruction in the light of the principles enunciated in State v. Massey, 86 N.C. 658, 41 Am. Rep. 478, and approved and followed in State v. Jeffreys, 117 N.C. 743, 23 S.E. 175, State v. Smith, 136 N.C. 684, 49 S.E. 336, and State v. Hill, supra. See also State v. Allen, 186 N.C. 302, 119 S.E. 504.
In State v. Massey, supra, Ashe, J., adopting the view expressed in the dissenting opinion of Rodman, J., in State v. Neely, 74 N.C. 425, 21 Am.Rep. 496, and speaking for the Court, said: "In order to convict a defendant on the charge of an 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...
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State v. Burnette, 435
... ... Massey, 86 N.C. 658; approved and followed in State v. Hill, 181 N.C. 558, 107 S.E. 140; State v. Jones, 222 N.C. 37, 21 S.E.2d 812; State v. heater, 229 N.C. 540, 50 S.E.2d 309. An ... assault is essential to constitute the crime. State v. Overcash, 226 N.C. 632, 39 S.E.2d 810 ... The evidence offered by the State, considered in the light most favorable to it on the motion for ... ...
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State v. Matthews
...199 N.C. 321, 154 S.E. 402; State v. Williams, 185 N.C. 685, 116 S.E. 736; State v. High, 215 N.C. 244, 1 S.E.2d 563; State v. Jones, 222 N.C. 37, 38, 21 S.E.2d 812; State v. Bentley, 223 N.C. 563, 27 S.E.2d 738; State v. Weinstein, 224 N.C. 645, 31 S.E.2d 920, 156 A.L.R 625; State v. Oxend......
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State v. Crisp, 579
... ... Jones, 222 N.C. 37, 21 S.E.2d 812. If the defendant had properly raised his contention by requesting the judge to instruct the jury that they could not return a verdict for any higher offense than manslaughter, State v. Gregory, 203 N.C. 528, 166 S.E. 387, his contention is without merit ... ...
- State v. Matheson, 361.