State v. Moshier ( 1973 )

CAMPBELL, Judge.

The defendant assigns as error a leading question asked the victim. This was a matter within the discretion of the trial judge, and we find no abuse of that discretion. State v. Pearson, 258 N.C. 188, 128 S.E. 2d 251 (1962).

The defendant assigns as error the failure to dismiss the case and in letting it go to the jury. We think the evidence more than ample to take the case to the jury. The fact that the defendant discontinued his efforts in view of the resistance put up by the victim does not vary the result. If the defendant at any time during the assault had an intent to gratify his passion upon his victim notwithstanding any resistance on her part, then the defendant would be guilty of the offense charged. State v. Gammons, 260 N.C. 753, 133 S.E. 2d 649 (1963); State v. Hudson, 280 N.C. 74, 185 S.E. 2d 189 (1971).

The defendant also assigns as error the failure of the trial judge to submit the case to the jury on the lesser included offense of an assault on a female.

This was not error, for as stated by Lake, Justice, in State v. Roseman, 279 N.C. 573, 184 S.E. 2d 289 (1971):

“. . . Where all of the evidence tends to show that the offense committed, if any, was that charged in the bill of indictment and there is no evidence tending to show the commission of a lesser, included offense, except insofar as it is a necessary element of the offense charged, the court is not required to submit for the jury’s consideration the possibility of a verdict of guilty of such lesser, included offense, or to instruct the jury concerning such lesser offense. . . .”

We have considered the other assignments of error and find them to be without merit.

No error.

Judges Morris and Hedrick concur.