State v. Leak

• Decision Date: 01 November 1911
• Citation: 72 S.E. 567,156 N.C. 643
• Parties: STATE v. LEAK.
• Court: North Carolina Supreme Court

72 S.E. 567

156 N.C. 643

STATE v. LEAK.

Supreme Court of North Carolina

November 1, 1911

Appeal from Superior Court, Richmond County; Ferguson, Judge.

Jim Leak was convicted of assault with intent to rape, and he appeals. Affirmed.

Evidence was admissible, in a prosecution for assault with intent to rape, that on the same day, as prosecutrix passed the accused, he caught her by the ankle, and said, "You are as fat as a pig, ain't you," being evidence of another assault, of which accused could have been convicted under the indictment.

The defendant is charged in the indictment with the crime of assaulting Maggie Hasty, who was about 12 years of age, with the intent to commit rape, and upon conviction was sentenced to a term of five years in the state's prison.

The assault is alleged to have been committed at the home of the prosecuting witness, where the defendant, who is an old negro man, was working, and the only person on the premises, except the defendant and the witness, was a little sister of the witness. Neighbors lived within a short distance, but, if the evidence of the state is believed, the place of the assault was at the back of the house, on the stairs leading into the basement, which was at least practically concealed.

Maggie Hasty was examined as a witness for the state, and testified to the assault and the circumstances surrounding her at the time. Among other things, she said that the defendant had his hand on her person under her clothes, when a neighbor called her, and that he then desisted. The witness was permitted to say that the defendant had put his hands on her before on the day of the assault, and the defendant excepted; also on what part of her person the defendant had his hands when the neighbor called her, and defendant excepted; also that, when committing the assault, the defendant "would kind of listen," and defendant excepted.

She was asked on cross-examination if the defendant was "considered bright," and if he did not have the reputation "of not being strong-minded." Upon objection, the witness was not permitted to answer either question, and the defendant excepted.

The defendant tendered the following prayers for instructions:

"(1) That the evidence must show, beyond a reasonable doubt, not only an assault, but that the defendant intended to gratify his passion on the person of Maggie Mae Hasty, and that he intended to do so at all events, notwithstanding any resistance made on her part. If they are not so satisfied they cannot convict the defendant of an assault with intent to commit rape upon the said Maggie Mae Hasty.

"(2) That the defendant can be convicted of the lesser offense of assault and battery, or a simple assault.

"(3) That the jury must find, beyond a reasonable doubt, from the evidence that the defendant placed his hand upon the person of Maggie Mae Hasty with the intent and purpose at the time, notwithstanding any resistance she might make, and at all events, to gratify his passion on her person, before he can be convicted of an assault to commit rape."

There was no request to charge the jury that there was not sufficient evidence to sustain the indictment, but upon the rendition of the verdict the defendant moved the court to set aside the verdict: (1) As being against the weight of the evidence; (2) for errors in the admission and rejection of testimony; for errors in his honor's charge to the jury; (3) for failure to give the special instructions asked by the defendant.

The Attorney General and Geo. L. Jones, Asst. Atty. Gen., for the State.

ALLEN J.

Upon an examination of the record, we find no error which entitles the defendant to a new trial.

The objection that there was not sufficient evidence to sustain a conviction cannot be entertained after verdict (State v Harris, 120 N.C. 578, 26 S.E. 774; State v. Huggins, 126 N.C. 1055, 35 S.E. 606; State v. Williams, 129 N.C. 582, 40 S.E. 84); but, if it had been made in apt time, it could not avail the defendant, as the evidence is as conclusive as in State v. Page, 127 N.C. 512, 37 S.E. 66, and stronger than in State v. Garner, 129 N.C. 536, 40 S.E. 6, in which judgments...