#### STATE v. JIM LEAK.

(Filed 1 November, 1911.)

1. Objections and Exceptions — Sufficiency of Evidence — Verdict— Procedure.

Objection tbat there was not sufficient evidence to sustain a conviction of the offense charged will not be entertained after verdict.

2. Rape — Assault with' Intent — Evidence Sufficient.

Evidence, of an assault upon a twelve-year-old girl with the intent to commit rape held sufficient which tended to show undue familiarities taken with the person of the girl by the prisoner in placing his hands upon her person under her clothes, in a secluded place, desisting when a neighbor called her, and appearing at the time to-be listening for interruptions; and that this familiarity had been taken in like manner previously on the same day.

3. Instructions — Prayers Requested — Substance—Sufficient Compliance.

The prayers for special instruction requested by defendant in an action for an assault with intent to commit rape being substantially given, no error is found therein.

4. Rape — Assault with Intent — Burden of Proof.

In order to convict of an assault with the intent to commit rape, not only the assault, but the intent, must be shown beyond a reasonable doubt, and the purpose of accomplishing the intent notwithstanding resistance made.

5. Rape, Assault with Intent — Conviction—Less Offense.

When the prisoner is tried for an assault with intent to commit rape, the jury may return their verdict of a less offense, assault and battery, or simple assault, if there is evidence thereof.

*6446,. Rape, Assault with Intent — Other Acts — Intent—Evidence.

Upon a trial for an assault with the intent to commit rape, it is competent to show that a short time before it is alleged the defendant committed the assault with the felonious intent, the prosecutrix passed him as he was sitting on the steps, and that he caught her by the ankle and said, “You are as fat as a pig, aren’t you?” as evidence tending to show another assault committed under the indictment, and the prisoner’s animus and intent upon the second assault.

7. Rape,, Assault with Intent — Evidence—“Listening”—Opinion— Fact.

The testimony of the prosecutrix, that the prisoner “listened” at the time of making the alleged assault with intent to commit rape, is not objectionable upon the ground that it was an expression of an opinion. Britt v. R. R., 148 N. C., 37; Wilkinson v. Dunbar, 149 N. C., 20, cited and approved.

8. Appeal and Error — Evidence—Exclusion of Answers,

On appeal, exceptions to exclusion of answers will not be reviewed when it does not appear what was the nature of the testimony excluded.

. Appeal from Ferguson, J., at September Term, 1911, of RICHMOND.

Tbe defendant is charged in the indictment with the crime of assaulting Maggie Hasty, who was about 12 years of age, with the intent to commit rape, and upon conviction was sentenced to a term of five years in the State’s Prison.

The assault is alleged to have been committed at the home of the prosecuting witness, where the defendant, who is an old negro man, was working; and the only person on the premises, except the defendant and the witness, was a little sister of the witness. Neighbors lived within a short distance, but, if the evidence of the State is believed, the place of the assault was at the back of the house, on the stairs leading into the basement, which was at least partially concealed.

Maggie Hasty was examined as a witness for the State, and testified to the assault and the circumstances surrounding her at the time. Among other things, she said that the defendant had his hand on her person under her clothes, when a neighbor called her, and that he then desisted. The witness was permitted to say that the defendant had, put his hands on her *645before on tbe day of the assault, and the defendant excepted. Also on what part of her person the defendant had his hands when the neighbor called her, and defendant excepted. Also that when committing the assault the defendant “would kind of listen,” and defendant excepted.

She was asked on cross-examination if the defendant was “considered bright,” and if he did not have the reputation “of not being strong-minded.” Upon objection, the witness was not permitted to answer either question, and the defendant excepted.

The defendant tendered the following prayers for instructions :

(1) That the evidence must show beyond a reasonable doubt, not only an assault, but that the defendant intended to gratify his passion on the person of Maggie Mae Hasty, and that he intended to do so at all events,'notwithstanding any resistance made on her part. If they are not so satisfied, they cannot convict the defendant of an assault with intent to commit rape upon the said Maggie Mae Hasty.

(2) That the defendant can be convicted of the lesser offense of assault and battery or a simple assault.

(3) That the jury must find beyond a reasonable doubt from the evidence that the defendant placed his hand upon the person of Maggie Mae Hasty with the intent and purpose at the time, notwithstanding any resistance she might make, and at all events, to gratify his passion on her person, before he can be convicted of an assault with intent to commit rape.

There was no request to charge the jury that there was not sufficient evidence to sustain the indictment, but upon the rendition of the verdict the defendant moved the court to set aside the verdict (1) as being against the weight of the evidence, (2) for errors in the admission and rejection of testimony, for errors in his Honor’s charge to the jury, (3) for failure to give the special instructions asked by the defendant.

Attorney-General Biclcett and Assistant Attorney-General George L. Jones for the State.

Defendant not represented in this Court.

*646AlleN, J.

Upon an examination of tbe record, we find no error which entitles the defendant to a new trial. The objection that there was not sufficient evidence to sustain a conviction cannot be entertained after verdict. S. v. Harris, 120 N. C., 578; S. v. Huggins, 126 N. C., 1055; S. v. Williams, 129 N. C., 582. But if it had been made in apt time, it could not avail the defendant, as the evidence is as conclusive as in S. v. Page, 127 N. C., 512, and stronger than in S. v. Garner, 129 N. C., 536, in which judgments upon verdicts of guilty were approved.

His Honor gave the defendant the benefit of all the instructions requested, as appears from the following excerpt from his charge:

“The evidence must show, beyond a reasonable doubt, not only an,assault, but that the defendant intended to gratify his passion on the person of Maggie Mae Hasty, and that he intended to do so at all events, notwithstanding any resistance made on her part; and if the evidence does not so satisfy your mind, you cannot convict the defendant of the assault with intent to commit rape upon the said Maggie Mae Hasty. The defendant can be convicted of the lesser offense of assault and battery or simple assault. The jury must find, beyond a reasonable doubt, that he placed his hands upon the person of Maggie Mae Hasty with the intent and purpose at the time, notwithstanding any resistance she might make, and at all events, to gratify his passion on her person, before he can be convicted of .an assault to commit rape.”

It was competent for the State to prove that the defendant placed his hands on the prosecutrix at another time on the day of the assault, as evidence of another assault of which the defendant could have been convicted under the indictment, and as tending to prove the animus and intent of the defendant. S. v. Murphy, 84 N. C., 742; S. v. Parish, 104 N. C., 692; S. v. Adams, 138 N. C., 693.

The evidence objected to was that a short time before it is alleged the defendant committed the assault with the felonious *647intent, tbat tbe prosecutrix passed tbe defendant as be was sitting on tbe steps, and tbat be caug'bt ber by tbe ankle and said: “You are as fat as a pig, ain’t you?”

Tbe exceptions to tbe refusal to permit tbe witness to say whether or not tbe defendant was considered bright, or bad tbe reputation of not having a strong mind, are without merit. There is nothing to indicate what was expected to be proved, or what answer would have been’given to tbe questions, and so far as we can see, tbe witness would have answered both questions in the negative.

It does not, therefore, appear tbat tbe defendant has been prejudiced by tbe ruling. Tbe evidence of tbe prosecutrix, tbat tbe defendant was listening, was objected to upon tbe ground tbat it was an expression of an opinion. We do not think so. Tbe rule applicable to evidence of this character is clearly and accurately stated in McKelvey on Evidence, p. 220 et seq., as follows:

“Tbe instantaneous conclusions of tbe mind as to tbe appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to tbe senses at one and tbe same time, are, legally speaking, matters of fact, and are admissible in evidence.

“A witness may say tbat a man appeared intoxicated or angry or pleased. In one sense tbe statement is a conclusion or opinion of tbe witness, but in a legal sense, and within tbe meaning of tbe phrase, 'matter of fact,’ as used in tbe law of evidence, it is not opinion, but is one of tbe class of things above mentioned, which are better regarded as matters of fact. Tbe appearance of a man, bis actions, bis expression, bis conversation — a series of things — go to make up tbe mental picture in tbe mind of tbe witness which leads to a knowledge which is as certain, and as much a matter of fact, as if be testified, from evidence presented to bis eyes, to tbe color of a person’s hair, or any other physical fact of like nature.

“This class of evidence is treated in many of tbe cases as opinion admitted under exception to the general rule, and in others as matter of fact — 'shorthand statement of fact,’ as it is *648called. It seems more accurate to treat it as fact, as it embraces only those impressions which are practically instantaneous, and require no conscious act of judgment in their formation. The evidence is almost universally admitted, and very properly, as it is helpful to the jury in aiding to a clearer comprehension of the facts.”

This principle has been approved in Britt v. R. R., 148 N. C., 37; Wilkinson v. Dunbar, 149 N. C., 20, and in other cases in our reports.

"We find

No error.