State v. Nash

• Decision Date: 10 November 1891
• Parties: State v. Nash.
• Court: North Carolina Supreme Court

13 S.E. 874

109 N.C. 824

State v. Nash.

Supreme Court of North Carolina

November 10, 1891

Appeal from superior court, Granville county; Robert W. Winston Judge.

H. A Nash, indicted for assault with intent to commit rape, was convicted of a simple assault, and appeals. Reversed.

Statement by the Court. Defendant requested the court to charge the jury, in addition to other propositions, as follows "(2) If defendant put his hand on the person of Susan with intent only to examine her as a physician, and with no intent to take indecent liberties with her, then defendant is not guilty of any assault, and the jury will return a verdict of not guilty. (3) If defendant put his hands on the person of Susan with her consent, and not against her will, the defendant is not guilty of any assault, and the jury will return a verdict of not guilty." The court gave the instruction embraced in the first proposition, but refused the other request, and told the jury that, "if Dr. Nash went to Susan's room, and to her bed, and with the desire to gratify any morbid curiosity, or to have to do with her or for any other unlawful purpose, felt her breast or private parts, he is guilty, and it will be your duty to convict. If you find from the facts that defendant took advantage of his position as a physician, and as such, and with a bad purpose, felt the person of Susan, by pretending he would see if she had womb disease, you will find defendant guilty, even if she made no resistance, but consented to the same. But if defendant went in the room of Susan, and put his hands on her person, with no intent to take indecent liberties with her, but in good faith, at the request of Mrs. Goss, or because he thought she was sick, and needed his attention, and in good faith put his hands on her to examine her, he would not be guilty, and you will so find." At a later stage of the charge the judge added the following: "So that the question comes back again to what the court has already charged you: 'Did defendant do what he did to Susan in good faith, as her physician, or did he handle her person for a bad or unlawful purpose?' If he acted in good faith as a physician, and did what he did as such, he is not guilty; otherwise he is guilty." The question being only whether there was evidence to show consent obtained otherwise than fraudulently, it is unnecessary to set out all the evidence for the state.

L. C. Edwards and B. S. Royster, for appellant.

J. W. Graham, Atty. Gen., and T. B. Womack, for the State.

Avery J.

If it be conceded that where a physician induces a female to submit to an examination of her person by the false and fraudulent representation that he is putting his hands upon her in good faith, for the purpose of diagnosing and treating a disease when in fact his object is only to gratify a licentious desire, he is equally guilty, in contemplation of law, with one who takes the same liberties against her consent, and with the avowed intention of gratifying his lusts, it is none the less a sound proposition of law that, whether the person charged with the assault be a physician or not, he may successfully meet such a charge by showing to the satisfaction of the jury that, without resorting to falsehood or deception, he had the consent of a girl, 17 years old, to put his hand upon her person as he did. Whether his intention was to desist after fondling her, or to have carnal intercourse with her, if she should continue to yield to him, he was not guilty if her consent was gained otherwise than by using his professional character to practice a fraud. There was serious conflict in the testimony of the prosecutrix and the defendant as to what the latter actually did and said at her bedside. The charge of the learned judge seems to have been founded upon the idea that the jury, in passing upon the facts, were so restricted that they must adopt either the theory of the state or that arising out of the defendant's testimony, and were not at liberty to take into consideration the whole of the evidence, and predicate their finding upon a hypothesis not entirely consistent with the theory advanced, or the testimony offered in support of it, by either the prosecution or the defense. Counsel may have contended before the jury that another witness corroborated the testimony of the plaintiff to the extent of showing that the mother of the prosecutrix had expressed apprehension as to the consequence to her daughter of overexertion on the previous afternoon. The jury may have concluded that, under the honest belief that the prosecutrix was suffering, and with the bona fide purpose of relieving her, the defendant first entered her room; but that subsequently, on discovering a willingness on her part to submit to liberties that, as she must have known, constituted no part of a legitimate medical or surgical examination, he determined to go further, and did so with her assent, plainly indicated. It appeared that two men, sleeping in the loft just above her, heard no outcry, nor loud remonstrance, and the prosecutrix did not say that s...