State v. Walker

Campbell, J.

The question presented for determination is: Did the trial judge err in denying the defendant’s motion for judgment as of non-suit on the charge of assault with the intent to commit rape? The answer is in the affirmative.

In State v. Gammons, 260 N.C. 753, 133 S.E. 2d 649, the Supreme Court stated:

“To convict a defendant on the charge of an assault with intent to commit rape the State must prove not only an assault but that defendant intended to gratify his passion on the person of the woman, and that he intended to do so, at all events, notwithstanding any resistance on her part. ... It is not necessary to complete the offense that the defendant retain the intent throughout the assault, but if he, at any time during the assault, have an intent to gratify his passion upon the woman, notwithstanding any resistance on her part, the defendant would be guilty of the offense. . . . Intent is an attitude or emotion of the mind and is seldom, if ever, susceptible of proof by direct evidence, it must ordinarily be proven by circumstantial evidence, i.e., by facts and circumstances from which it may be inferred. . . .

Assuming the truth of prosecutrix’s testimony, as we must on the motion to nonsuit, defendant assaulted prosecutrix and intended to gratify his passion upon her person, but the evidence fails to show, circumstantially or otherwise, that he intended at any time during the assault to have carnal knowledge of her, at all events, notwithstanding any resistance on her part. Defendant was in his own home and his wife was in another room within earshot of any outcry. He did not threaten to do her violence if she refused to yield. When she threatened to scream he immediately desisted. It is true that he thumblatched the door, but this seems more consistent with the intent to avoid interruption in case he engaged in the act than any intent to imprison or restrain prosecutrix. He, himself, released the lock. He attempted to persuade her to yield by pretention that the sex act was a religious rite necessary to her cure. But his conduct did not show any intention to overcome her resistance by force and have the intercourse at all events.”

Likewise, in this case, the evidence fails to show, circumstantially or otherwise, that the defendant intended at any time during the assault to have carnal knowledge of the prosecutrix at all events, notwithstanding any resistance on her part. The defendant made no threats and used no violence. He desisted when requested to do so and when his fondling did not break down the resistance and refusal of the prosecutrix. The conduct of the defendant did not show any intention to overcome resistance of the prosecutrix by force and to have intercourse at all events.

The trial judge erred in denying the defendant’s motion for judgment as of nonsuit on the charge of assault with the intent to commit rape. However, he is not entitled to discharge. Since he is a male person over eighteen years of age, the State may put him on trial for the misdemeanor of assault on a female. G.S. 14-33. A new indictment is not necessary and he may be tried for the misdemeanor under the present bill of indictment. State v. Gammons, supra.

New trial.

MallaRD, C.J., and MoRRis, J., concur.