#### STATE v. RALPH JOHNSON.

(Filed 13 April, 1938.)

1. Rape § 8: Criminal Law § 52b—

Testimony of prosecutrix beld sufficient to take the ease to the jury on the charge of rape, although there were possible inferences from the testimony tending to contradict her, the weight and credibility of her testimony being in the exclusive province of the jury.

2. Rape § 9 — Indictment and evidence held to warrant submission of both carnal knowledge of prosecutrix, she being under 12 years of age, and with force against her will.

Where the indictment charges that defendant did ravish and carnally know prosecutrix by force and against her will, she being a child under twelve years of age, it is not error for the court to present to the jury, as applicable to the evidence in the case, both the question of carnal knowledge of prosecutrix when she was under twelve years of age, and carnal knowledge of prosecutrix when she was over twelve years of age by force and against her will. C. S., 4204.

*390Appeal by defendant from Warliclc, J., at January Term, 1938, of Iredell. No error.

Tbe defendant was charged with tbe capital felony of rape. Tbe jury returned a verdict of guilty, and from judgment imposing sentence of death 'the defendant áppealed.

Attorney-General Seawell and Assistant Attomeys-General McMullan and Willis for the State.

J. H. Burke and John R. McLaughlin for defendant.

DeviN, J.

Tbe appellant presents in bis brief two questions for decision:

1. Was tbe evidence sufficient to warrant submission of tbe case to tbe jury?

2. Did tbe court err in its charge to tbe jury as to the two phases of tbe crime as charged in tbe bill of indictment?

1. Tbe State’s witness, upon whom tbe rape is alleged to have been committed, is Margaret Johnson, daughter of tbe defendant. She was born 12 August, 1925, and was twelve years of age at tbe time of tbe trial. She testified that tbe first time tbe defendant bad intercourse with her was in April, 1931, when she was under twelve years of age; that she pushed him and told him to leave her alone; that be threatened to beat her if she told; that tbe defendant was 35 years of age. She further testified that other similar acts were committed by tbe defendant from time to time up to December, 1931, when she told her grandfather; that she told her aunt in tbe fall.

Though tbe defendant denied bis guilt, and there were possible inferences from the testimony tending to contradict tbe State’s witness, her evidence was sufficient to make out a case of rape and to carry tbe case to tbe jury. It was tbe exclusive province of the jury to determine tbe credibility of tbe witness and tbe weight to be given her testimony. There was no error in denying defendant’s motion for judgment as of nonsuit.

2. Tbe appellant assigns as error that tbe trial judge submitted tbe case to tbe jury as^if there were two counts in tbe bill, one charging intercourse when tbe State’s witness was under twelve years of age and tbe other when she was over twelve years of age, by force and against her will.

Tbe bill of indictment charged that tbe defendant did ravish and carnally know tbe witness, Margaret Johnson, by force and against her will, she being a female child under twelve years of age. There was therefore no error in presenting to tbe jury tbe elements of tbe crime of rape defined in tbe statute (C. S., 4204) and charged in tbe bill of in*391dictment, as applicable to tbe evidence in tbe case. S. v. Linney, 212 N. C., 739; S. v. Puckett, 211 N. C., 66.

We bave examined tbe other exceptions noted at tbe trial and not brought forward in the brief, and decide that none of them can be sustained.

In tbe trial we find

No error.