State v. Jacobs

180 S.E.2d 832 (1971)

STATE of North Carolina
v.
Vardell JACOBS.

No. 83.

Supreme Court of North Carolina.

May 12, 1971.

Robert Morgan, Atty. Gen., Sidney S. Eagles, Jr., Asst. Atty. Gen., Russell G. Walker, Jr., Staff Atty., for the State.

Evander M. Britt, Lumberton, attorney for defendant.

SHARP, Justice:

Defendant makes four assignments of error. His case on appeal, however, shows no objection to any evidence offered by the State and no exception to any ruling by the trial judge or to his charge to the jury. In his first assignment of error defendant's counsel asserts "that the lower court erred in failing to declare and explain the law arising on the evidence given in the case as required by G.S. 1-180, as set forth in this Exception No. 1." (Italics ours.)

The Rules of Practice (19 and 21) of both this Court and the Court of Appeals require any error asserted on appeal to be supported by an exception duly taken and shown in the record. Exceptions which appear for the first time in the purported assignments of error present no question for appellate review. State v. Greene, N.C., 180 S.E.2d 789. See State v. Merrick, 172 N.C. 870, 90 S.E. 257. Furthermore, each assignment must specifically state the alleged error so that the question sought to be presented is therein revealed. State v. Staten, 271 N.C. 600, 157 S.E.2d 225. An assignment based on the court's failure to charge should set out the defendant's contention as to what the court should have charged. State v. Wilson, 263 N.C. 533, 139 S.E.2d 736. Appellate rules of practice are applicable to indigent defendants and their court-appointed counsel as they are to all others. State v. Price, 265 N.C. 703, 144 S.E.2d 865.

Defendant's brief discloses that in his first assignment he complains of the charge upon the premise that the court did not properly define either assault or assault with the intent to commit rape. This postulate, the foundation of defendant's appeal, is not supported by the record. After giving the usual definitions of assault and rape, the judge explained to the jury that an assault upon a female under the age of 12 years, made with intent to have sexual intercourse with her, constitutes the crime of assault with the intent to commit rape —the elements of force and lack of consent being conclusively presumed. This was a correct instruction, fully supported by the decisions of this Court. State v. Hartsell, 272 N.C. 710, 158 S.E.2d 785; State v. Lucas, 267 N.C. 304, 148 S.E.2d 130; State v. Carter, 265 N.C. 626, 144 S.E.2d 826. A child under the age of twelve cannot consent, G.S. § 14-21, and "[t]he law resists for her." State v. Lucas, supra 267 N.C. at 307, 148 S.E.2d at 131.

Defendant expressly abandoned his second assignment of error, that is, that the judge erred in refusing to set aside the jury's verdict as being against the weight of the evidence. The third and fourth assignments, that the court erred in refusing to grant defendant's motion for a new trial and in entering judgment, are formal and also without merit.

The court instructed the jurors that they might return one of three verdicts: guilty of the felony charged, guilty of an assault on a female, or not guilty. The evidence was short and uncontradicted; the charge uncomplicated. Nothing suggests that the jury did not fully understand the instructions or that there has been a miscarriage of justice. In the trial we find

No Error.