#### STATE OF NORTH CAROLINA v. LEE THOMAS HAMILTON

No. 7820SC918

(Filed 6 February 1979)

Rape § 6.1— second degree rape — instruction on assault on female improper — defendant not prejudiced

In a prosecution for second degree rape where all of the evidence of defendant showed there was a completed act of intercourse and the issue was whether there was consent, any error in the trial court’s charge on assault on a female was not prejudicial to defendant since that charge should not have been submitted to the jury and any error was favorable to defendant.

APPEAL by defendant from Walker (Hal HJ, Judge. Judgment entered 16 May 1978 in Superior Court, UNION County. Heard in the Court of Appeals 19 January 1979.

The defendant appeals from a conviction of second degree rape. The State offered evidence sufficient to support a conviction of rape. The defendant testified he had intercourse with the prosecuting witness, but that it was with her consent. The court submitted to the jury charges of first and second degree rape, assault with intent to commit rape, and assault on a female.

Attorney General Edmisten, by Associate Attorney Tiare Smiley Farris, for the State.

Joe P. McCollum, Jr., for defendant appellant.

WEBB, Judge.

The defendant’s only assignment of error pertains to the charge. He argues the court did not properly define assault on a female. In its charge concerning assault on a female, the court said that one of the things the State must prove is “that the defendant assaulted Patricia McClendon, that he at least laid his hands on her without her consent.” Assuming this was error, we hold it did not harm the defendant. In this case all the evidence including the evidence of the defendant showed there was a completed act of intercourse. The issue was whether this intercourse was with the consent of the prosecuting witness. The charge of assault on a female should not have been submitted to the jury. State v. Bryant, 280 N.C. 551, 187 S.E. 2d 111, cert. denied, 409 *688 U.S. 995 (1972). It was error favorable to the defendant and we hold he was not prejudiced by this charge. State v. Small, 31 N.C. App. 556, 230 S.E. 2d 425 (1976).

No error.

Judges Parker and Arnold concur.