#### STATE v. FRED ADAMS.

(Filed 30 November, 1938.)

1. Rape § 5—

The offense defined by Michie’s Code, 4205, is an assault on a female with intent to commit rape, the “intent” to commit this offense being inclusive of an “attempt” to commit it.

2. Rape § 7: Criminal Daw § 81c — Admission of evidence will not be held for error when evidence of same import is admitted without objection.

In this prosecution for assault with intent to commit rape, defendant objected to the testimony of a witness that she heard prosecutrix tell the doctor that she had been “attacked and tried to be raped” by the defendant. Held: The admission of the evidence cannot be held prejudicial in view of the admission of evidence of the same import without objection and the plenary evidence that defendant attacked prosecutrix.

3. Rape § 9: Criminal Law § 81c — Inadvertent error in instructions which could not mislead the jury will not be held prejudicial error.

In this prosecution for assault o with intent to commit rape, an inadvertent instruction that ordinarily the question of intent must not be left to the jury to determine from the facts and circumstances, is held not prejudicial in view of the correct instruction immediately following, and the fact that the court submitted the question of intent to the jury under correct instructions.

4. Criminal Law §§ 4b, 43h—

The instruction on the question of intoxication as a defense in precluding the formation of criminal intent comprising an essential element of the crime charged, held without error when construed as a whole.

Appeal by defendant from Armstrong, J., and a jury, at January Term, 1938, of Gaston.

No error.

Tbis is a criminal action instituted in the Superior Court of Gaston County, North Carolina, in which the defendant is charged with an assault with intent to commit rape.

The bill of indictment is as follows:

“State of North Carolina — Gaston County.

In the Superior Court, January Term, 1938.

“The jurors for the State upon their oath present, that: Fred Adams, late of the County of Gaston, on 2 December, 1937, with force and arms, at and in the county aforesaid, did unlawfully, wilfully, and feloniously commit an assault upon a female, to wit, one Evelyn Price, with intent to rape, ravish, and carnally know the said Evelyn Price forcibly and against her will, against the form of the statute and in such case made and provided, and against the peace and dignity of the State.

John G. OaRpenteb, Solicitor

*502Tbe testimony for tbe State: Tbe prosecutrix, Evelyn Price, testified, in part: That on 2 December .sbe was at borne; that tbe defendant came there late in tbe afternoon and asked for ber brother, and sbe told him ber brother was not at home; that tbe defendant said be bad an engagement to meet ber brother there; that be pulled up a chair and sat down; that be attempted to put bis arm around ber; that sbe jumped up and told him sbe was not tbe bugging kind; that be inquired if sbe did a little kissing; that a scuffle ensued in tbe living room and tbe bedroom; that be threw ber down on tbe floor; that be put bis fist in ber mouth, and bis coat over ber, and that be struck ber, and beat ber, and bit ber, and in addition tore some of ber undergarments practically off; that tbe scuffle lasted some 20 or 25 minutes; sbe testified that sbe screamed and hollered for some of tbe neighbors; that sbe finally got loose and called some of tbe neighbors; that tbe defendant ran through tbe back of tbe bouse through a screen door that was locked. Sbe testified that sbe told her mother and Mr. "Williams and Mr. Gunter about what happened. That tbe defendant was drinking.

Mrs. Price testified: That sbe is tbe mother of Evelyn Price; that sbe bad stepped out to tbe store; that Evelyn’s ear was bleeding; that sbe bad a black eye, and ber neck and shoulders were swollen, and that tbe bedroom and living room were torn up.

• Tom Ingle testified: That be was going home and be beard Miss Evelyn Price hollo for ber mother. That sbe told him what bad happened, and that Miss Evelyn’s ear and nose were bleeding and ber knees were bruised.

Pete Nivens'testified: That be was coming down tbe street and be beard Miss Price scream; that be went to the door; that sbe told him what tbe defendant bad done; that be noticed the screen door was broken.

Mr. Williams testified: That be saw Miss Price; that ber ear was bleeding, and ber neck was swollen, and that Miss Price told him tbe defendant assaulted ber.

Helen Gordon testified: That sbe saw the defendant run from tbe back of some of tbe bouses facing on Marietta Street and come out on Fifth Street; that sbe saw Miss Price, and ber ear was bleeding.

Dr. McCbesney testified: That be examined Miss Price on 2 December about 1:00 p.m., and found ber in a very nervous state and crying; bruised on ber knee, and redness of neck and face; and ber face was swollen and she bad a cut on ber right ear.

Mrs. T. E. Royster testified: That sbe went to tbe bouse and found Miss Price crying; that sbe bad a bruise on ber knee; that tbe front room was torn up. Question: “State what you beard Miss Price say?” (Objection; objection overruled.) Ans.: “Miss Price told tbe doctor sbe bad been attacked and tried to be raped by tbe defendant.”

*503Albert Nims testified: That he went to the house and saw Miss Price, and that her ear was bleeding.

D. 0. Gunter testified: That he lived near the Price residence; that he heard some screaming or some sort of fuss at the Prices; that he supposed it was Miss Price and her brother; that he got his pistol and went to the home of Miss Price, and found her mouth and nose bleeding; that she told him that the defendant had attacked her; that the character of the defendant Fred Adams is good, and that the character of Miss Price is good.

The defendant testified, in part, as follows: That he lived on Sixth Avenue; that he was a married man; that he knew Miss Price; that he did not go to her house on 2 December and attack her; that he was with Joe Price and Joe Long; that he got with them at 3 :30 and they drank a pint of white liquor; that they went to Belmont and back to Gastonia; that he went to Snyder’s Cafe and drank some beer, and the next thing he knew, he woke up in jail about 11:00 o’clock that night.

The defendant was corroborated by several witnesses. One testified that on 2 December, about 7:30 p.m., he was “limber drunk,” and another that he was “limber drunk” and that the only thing he would say when he was taken “would be to grunt.”

There was evidence on the part of the State that'defendant “was not drunk.” There was evidence that the prosecuting witness and defendant’s general reputation was good. The jury “came in and returned a verdict of guilty of an assault on a female with attempt to commit rape, as charged in the bill of indictment.” The court below pronounced judgment on the defendant as follows: “Judgment of the court is that the defendant be confined in State’s Prison at Raleigh, at hard labor and to wear stripes, for a term of not less than one year nor more than three years.”

The defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones will be set forth in the opinion.

Attorney-General McMullan and Assistant Attorneys-General Bruton and Wettach for the State.

Ernest B. Warren for defendant.

ClaeksoN, J.

N. C. Code, 1935 (Michie), section 4205, is as follows : “Every person convicted of an assault with intent to commit rape upon the body of any female shall be imprisoned in the State’s Prison not less than one nor more than fifteen years.”

In S. v. Hewett, 158 N. C., 627 (629), we find: “Thus we see that practically all definitions of an attempt to commit a crime, when applied *504to the particular crime of rape, necessarily imply and include ‘an intent’ to commit it. There may be offenses when in their application to them there is a distinction between ‘attempt’ and ‘intent,’ but that cannot be true as applied to the crime of rape. There is no such criminal offense as an ‘attempt to commit rape.’ It is embraced and covered by the offense of ‘an assault with intent to commit rape,’ and punished as such.”

Mrs. T. E. Royster testified: “That she went to the house and found Miss Price crying; that she had a bruise on her knee; that the front room was torn up. Q. ‘State what you heard Miss Price say?’ Ans.: ‘Miss Price told the doctor she had been attacked and tried to be raped by the defendant.’ ” To the above question and answer the defendant excepted and assigned error. From the other evidence in the case we do not think it prejudicial. Mr. Gunter testified “that he went to the home of the prosecutrix and ‘found her mouth and nose bleeding;’ that she told him that the defendant had attacked her.” This testimony was admitted without objection.

The defendant excepted and assigned error to the following part of the charge in brackets: “[So, gentlemen of the jury, whether the ulterior criminal intent existed in the mind of the defendant in this case at the time of the alleged criminal act must of necessity be inferred and found from other facts which in their nature are the subject of specific proofs. It must not, ordinarily, be left to the jury to determine from the facts and circumstances whether or not the ulterior criminal intent existed at the time of the act, if you find the act was committed.] In some cases, gentlemen of the jury, the inference will be irresistible, while in other matters you may have great difficulty in determining whether or not the accused committed the act charged with in the record, which is the criminal purpose. So that means, in this case, gentlemen of the jury, the charge contained in the bill of indictment, the State must satisfy you beyond a reasonable doubt not only that the defendant committed an assault on Miss Evelyn Price, as the court has defined the term assault, but the State must go further and show you beyond a reasonable doubt that the defendant had the intent to carnally know or to have sexual intercourse with her forcibly and against her will, regardless of any resistance she might make. If the State fails to so satisfy you, you will return a verdict of not guilty as contained in the first charge — assault with intent to commit rape. It is proper and you may consider all the facts and circumstances in this case to determine whether or not that intent did exist — that is, we won’t say, we can’t say, that the defendant had that intent but must procure evidence and let the jury consider it and see what happened and let you take into considera*505tion all tbe facts and circumstances surrounding tbe case, and say wbetber or not there was criminal intent or intent to commit rape.”

Tbe portion of tbe charge objected to in connection with the whole charge could not have misled the . jury. It could not be held as prejudicial. At most, it was an inadvertence followed by - a charge unquestionably correct.

The defendant excepted and assigned error to the following part of the charge in brackets: “If the defendant in this case was under the influence of intoxicating liquor to such an extent that his normal functions of body and mind were so interferred with — that is, if he was in such condition that he could not form an intent to commit rape — that is, if he did not know what he was doing and what he was about and what he was trying to do; if he was so affected by the liquor that he could not form an intent, then he could not be guilty of the charge as contained in the bill of indictment. Now, it wouldn’t make any difference, gentlemen of the jury, if a man gets two or three drinks óf liquor or gets Tight’ or 'high’ or gets nerve to commit an assault that wouldn’t be any excuse for committing this or any other crime; but you have got to be in such condition, you don’t have any mind; you don’t have sufficient mind to form an intent, [so I want you to clearly understand that because a man gets under the influence of whiskey and commits a crime, either such crime as charged in the bill of indictment or any other crime, it wouldn’t be an excuse].” Taking the charge as a whole, we think it the law in this jurisdiction.

We do not think the court below invaded the province of the jury by expression of an opinion, but fully complied with N. C. Code, supra, sec. 564. We think on the record that defendant’s exceptions and assignments of error cannot be sustained — they are too attenuated.

On the whole record, we find no prejudicial or reversible error.

No error.