#### STATE v. JOHN PAUL JONES.

(Filed 23 September, 1942.)

1. Kape § 5—

Upon an indictment charging an assault with intent to commit rape, C. S., 4204, and O. S., 4205, defendant may be convicted of an assault upon a female as though separately charged, C. S., 4639, and motion to dismiss under O. S., 4643, is properly refused where there is sufficient evidence to convict of an assault.

3. Same—

Where, in an indictment charging an assault with intent to commit rape, the evidence shows an assault but fails to show an intent to commit rape, at all events and notwithstanding any resistance on the part of the intended victim, the court would err in refusing to give an instruction to limit the verdict to a less degree of the same crime. O. S., 4640.

Appeal by defendant from Williams, J., at June Term, 1942, of Beaufobt.

Criminal prosecution upon indictment charging defendant with feloni-ously assaulting a female “with intent to rape, ravish and carnally know” her “forcibly and against her will.” O. S., 4204, and O. S., 4205.

Verdict: Guilty of assault with intent to commit rape.

Judgment: Imprisonment in State Prison at Ealeigh, assigned to work under the supervision of the State Highway and Public Works Commission at hard labor and to wear felon stripes for a term of not less than ten nor more than twelve years.

Defendant appeals to Supreme Court and assigns error.

Attorney-General McMullan and Assistant Attorheys-General Patton and Rhodes for the State.

Garter & Carter for defendant, appellant.

Winborne, J.

The only exception appearing in the record on this appeal is to the refusal of the court to allow defendant’s motion to dismiss the action as in case of nonsuit' — made in accordance with the provisions of C. S., 4643.

*38Upon tbe evidence appearing in tbe record, tbis exception cannot be sustained, for as stated in S. v. Hill, 181 N. C., 558, 107 S. E., 140, “We cannot grant tbe nonsuit, as tbe defendant could bave been convicted of an assault tbe same as if it bad been separately charged in an indictment.” C. S., 4639. See also S. v. Holt, 192 N. C., 490, 135 S. E., 324.

However, if there bad been a request for instruction to limit tbe verdict to a less degree of tbe same crime, C. S., 4640, we are of opinion that upon tbe evidence appearing in tbe record, tbe court would bave erred in refusing to give tbe instruction in tbe light of tbe principles enunciated in S. v. Massey, 86 N. C., 658, and approved and followed in S. v. Jeffreys, 117 N. C., 743, 23 S. E., 175; S. v. Smith, 136 N. C., 684, 49 S. E., 334; and S. v. Hill, supra. See also S. v. Allen, 186 N. C., 302, 119 S. E., 504.

In S. v. Massey, supra, Ashe, J., adopting tbe view expressed in tbe dissenting opinion of Rodman, J., in S. v. Neely, 74 N. C., 425, and speaking for tbe Court, said: “In order to convict a defendant on tbe charge of assault with intent to commit rape, tbe evidence should show not only an assault, 'but that tbe defendant intended to gratify bis passion on tbe person of tbe woman, and that be intended to do so, at all events, notwithstanding any resistance on her part.”

In S. v. Hill, supra, Walker, J., stated that tbe above principle has been settled law in North Carolina ever since tbe case of S. v. Massey, supra, was decided.

Tbe judgment below is

Affirmed.