#### STATE v. GURNEY HERRING.

(Filed 20 March, 1946.)

1. Criminal Law § 78c—

Assignments of error should be based upon exceptions briefly and clearly stated and numbered in the record, but in a capital case assignments of error not so based nevertheless may be considered. Rule 21.

2. Rape § lb—

An indictment charging that defendant with force and arms did unlawfully, willfully and feloniously ravish and carnally know the prosecuting witness, a female, by forcé and against her will, is held sufficient to support a verdict of guilty of the capital offense and judgment of death pronounced thereon.

8. Rape § 23~—

The failure of the court, in defining assault on a female, to state that the perpetrator must he a male over eighteen years of age will not be held for error on defendant’s appeal, since there is a presumption that defendant is over eighteen years of age and the burden rests upon him to show the contrary.

*2144. Criminal Law § 42c—

In cross-examining a witness for the State, defendant is not entitled to ask a question which assumes facts which are not established or admitted.

5. Rape § 4—

In this prosecution for rape, evidence tending to show that defendant choked and beat the prosecuting witness and by the use of force had sexual intercourse with her against her will, together with testimony of an admission made by defendant to the chief of police that defendant had feloniously assaulted .prosecutrix, is lielü, sufficient to be submitted to the jury, and defendant’s motion for a directed verdict of not guilty was properly refused.

Appeal by defendant from Garr, J., at November-December Term, 1945, of WayNE.

The record was made complete by being made to show tbe arraignment of the defendant as shown by the affidavit of the Clerk of the Superior Court of Wayne County filed in this Court in response to motion of the State suggesting the diminution of the record.

The defendant was tried, convicted and sentenced to death upon a bill of indictment which charged that he, the defendant “did unlawfully, willfully and feloniously ravish and carnally know one Olarinette Brock, a female, by force and against her will, against the form of the statute in such case made and provided, and against the peace and dignity of the State.”

From judgment of death by asphyxiation, the defendant appealed, assigning errors.

Attorney-General McMullan and Assistant Attorneys-General Rhodes, Moody, and Tucker for the State.

T. T. Thorne and George E. Hood for defendant, appellant.

ScheNCK, J.

The assignments of error set out in the appellant’s brief are not based upon exceptions briefly and clearly stated and numbered in the record, therefore they would seem not to be in compliance with Rule 21, Rules of Practice in the Supreme Court, 221 N. C., 558, yet this being a capital case wherein the life of the defendant is at stake, these assignments of error will, nevertheless, be considered.

Under the first assignment of error set out in the appellant’s brief he contends he is entitled to a discharge because the bill of indictment does not properly charge the offense of rape. The bill of indictment, in part, reads: “. . . that Gurney Herring, in Wayne County, on or before the 15th day of June, 1945, with force and arms, at and in the county afore*215said, did unlawfully, willfully and feloniously ravish and carnally know one Clarinette Brock, a female, by force and against ber will.” Tbe indictment is sufficient to support tbe verdict of guilty of tbe capital offense and judgment of death pronounced thereon. S. v. Farmer, 26 N. C., 224; S. v. Storkey, 63 N. C., 7; S. v. Johnson, 67 N. C., 55; S. v. Jackson, 199 N. C., 321, 154 S. E., 402. Tbis assignment of error is not sustained.

In tbe second assignment of error set out in appellant’s brief tbe defendant contends that tbe court erred in its charge in that in defining tbe offense of “Assault on female” tbe crime was not limited to males over tbe age of 18 years, and defendant argues that there is no evidence in tbe record tending to show tbe age of tbe defendant. Tbis exception is without merit for tbe reason that if there was error committed tbe error was in defendant’s favor as there is a presumption that tbe defendant was 18 years of age, and tbe burden rests upon him to show tbe contrary. S. v. Lewis, 224 N. C., 774, 32 S. E. (2d), 334, and cases there cited.

Tbe third assignment of error set out in tbe appellant’s brief is directed to tbe sustaining of tbe objection by tbe State to an interrogatory propounded to tbe prosecuting witness on cross-examination. Tbe interrogatory was: “People said they have seen him (defendant) frequently going to your bouse, going in and out day and night. They are just mistaken?” Tbe assignment of error is untenable for tbe reason that tbe question assumes facts which have not been established or admitted. 70 Corpus Juris, Witnesses, sec. 704, p. 545; Carson v. Insurance Co., 171 N. C., 135 (137-8), 88 S. E., 145. And, too, it would seem that tbe interrogatory calls for hearsay evidence in reply.

In tbe fourth assignment of error set out in tbe defendant’s brief tbe defendant contends that bis motion for a directed verdict of not guilty should have been allowed. Tbis contention is untenable in tbe face of tbe evidence introduced by tbe State; tbe prosecutrix testified, inter alia, that tbe defendant choked and beat ber, and that by tbe use of force bad sexual intercourse with ber five or six times; tbe doctor, who examined tbe prosecutrix after tbe alleged assault, testified that there were marks on ber throat and that ber arms and legs were bruised; and, in addition, tbe record tends to show that tbe defendant admitted to tbe chief of police a felonious assault by him upon tbe prosecutrix.

Tbe fifth assignment of error set out in tbe appellant’s brief is directed to tbe judgment pronounced by tbe court. There can be but little, if any, discussion of tbis assignment. Tbe verdict sustained tbe judgment, and tbe verdict was duly reached at tbe trial.

We have attentively examined and considered tbe exceptions as grouped, although not noted in tbe record, as well as tbe exceptions set *216out in. the appellant’s brief, and with full realization of the result thereof, we have reached the conclusion that there exists no valid reason to disturb the judgment entered below.

No error.