State v. Overcash

• Court: North Carolina Supreme Court
• Citation: State v. Overcash, 226 N.C. 632, 39 S.E.2d 810 (N.C. 1946)
• Decision Date: 30 October 1946
• Docket Number: 362
• Parties: STATE v. OVERCASH.

39 S.E.2d 810

226 N.C. 632

STATE v. OVERCASH.

No. 362

Supreme Court of North Carolina

October 30, 1946

Criminal prosecution on bill of indictment charging an assault with intent to commit rape.

On the night of 23 July 1946 defendant and prosecutrix visited several places in Concord where beer was sold and drank several bottles of beer. About twelve midnight they drove out in the country and parked off the highway near a ball field. Prosecutrix testified that defendant then tried to assault her. Defendant testified that they agreed to engage in illicit intercourse and got into the back seat of his car or taxi for that purpose, but prosecutrix, when she learned that he did not have a contraceptive, changed her mind and he brought her home. A more detailed summary of the sordid testimony would serve no good purpose.

There was a verdict of guilty as charged in the bill of indictment. From judgment pronounced on the verdict defendant appealed.

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

C M. Lewellyn, Z. A. Morris, Jr., and John Hugh Williams, all of Concord, for defendant appellant.

BARNHILL Justice.

The court in its charge clearly defined an assault and instructed the jury:

'It may be a simple assault, as where one man strikes another with his hand, shoves him in anger or hits him with his fist. It may be an assault with intent to commit rape. The element of that offense is, that there must be an assault, and there must be an intent on the part of the assailant to have intercourse with a female by force and in spite of any resistance she might make.'

It then charged the jury further as follows:

'If a man lays his hands on a woman and when he does so he intends to have intercourse with her, in spite of all resistance she may make, against her will, then that is an assault with intent to commit rape. A person may be guilty of an assault with intent to commit rape at any time he takes hold of a woman, lays his hands on her, and when he does so intends to have intercourse with her by force and against her will, in spite of all resistance she may make. He may change his mind, her resistance might be more than he anticipates he might be frightened away; but if at any time he took hold of her, laid his hands on her, and when he did so he intended to have intercourse with her by force, against her will and in spite of all resistance she might make, then the crime of assault with intent to commit rape would have been accomplished. ' (Italics supplied)

Thus the court in its amplification of the definition given fully explained the intent which is an intrinsic part of the assault, but it inadvertently disregarded the essential element of unlawfulness, rudeness or violence which makes the taking hold of a female an assault. The instruction makes the mere touching of the prosecutrix, without regard to her consent, sufficient if the defendant at the time intended to ravish in the event it became necessary to do so to accomplish his purpose.

The defendant admits that he put his hands upon the prosecutrix and that he intended to have carnal knowledge of her. He insists it was with her full consent and approval.

Under...