{
  "id": 8626595,
  "name": "STATE v. GEORGE W. JOHNSON",
  "name_abbreviation": "State v. Johnson",
  "decision_date": "1947-06-05",
  "docket_number": "",
  "first_page": "587",
  "last_page": "589",
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      "cite": "227 N.C. 587"
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:state",
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    {
      "cite": "222 N. C., 37",
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      "reporter": "N.C.",
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  "last_updated": "2023-07-14T16:20:04.384970+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. GEORGE W. JOHNSON."
    ],
    "opinions": [
      {
        "text": "Winborne, J.\nOn this appeal defendant presses for error the refusal of the court to grant his motion for judgment as of nonsuit entered at close of State\u2019s evidence, and renewed at the close of all the evidence, pursuant to provisions of G. S., 15-173. These motions, being general, may not be sustained. Since the prosecution is upon an indictment charging an assault with intent to commit rape, which is a felony, G. S., 14-1, and G. S., 14-22, it is lawful for the jury to acquit of the felony and to find a verdict of guilty of an assault upon a female if the evidence warrants such a finding. G. S., 15-169. Therefore, there being sufficient evidence to support at least a verdict of guilty of an assault upon a female, the motion to dismiss under G. S., 15-173 was properly denied. See S. v. Jones, 222 N. C., 37, 21 S. E. (2d), 812. Compare S. v. Gay, 224 N. C., 141, 29 S. E. (2d), 458.\nHowever, defendant\u2019s exceptions to portions of the charge of the court to the jury are well taken.\nOne exception has this setting, and is as follows: Opening the charge by saying that the bill of indictment charges defendant with an assault with intent to commit rape, and after enumerating various kinds of assaults, including that with which defendant is-charged, and instructing the jury that the gravamen of an assault is an intentional attempt, by violence, to do injury to the person of another, the court continued as follows: \u201cThere has been evidence offered in this case by both the State and tbe defendant. Tbe defendant contends tbat be is not guilty; tbe State contends tbat you should be satisfied, by tbe gTeater weight of tbe evidence, tbat be is guilty.\u201d Tbe exception is directed to tbe foregoing quotation.\nTbe rule of law as to tbe degree of proof, \u201cgreater weight of tbe evidence,\u201d as there set forth, is manifestly erroneous. Ordinarily a misstatement of contentions must be called to tbe attention of tbe court at tbe time, or else it will be deemed to be waived. But not so as to statements of a contention with respect to applicable law. See S. v. Gause, ante, 26, 40 S. E. (2d), 463, citing McGill v. Lumberton, 215 N. C., 752, 3 S. E. (2d), 324; S. v. Calcutt, 219 N. C., 545, 15 S. E. (2d), 9; Stanley v. Hyman-Michaels Co., 222 N. C., 257, 22 S. E. (2d), 570.\nAnother exception to tbe charge has this setting: After tbe jury bad retired and later returned to tbe courtroom, and asked and received further instruction, and again retired and later returned to tbe courtroom, and asked further instruction on one certain point, on which, the jury was \u201ctied up on,\u201d tbe court gave further instruction, concluding with tbe following: \u201cTbe mere fact tbat be might try to persuade her to submit herself to him, wouldn\u2019t make him guilty of tbe offense. (Q) To make him guilty of an assault, you must be satisfied tbat be bad made' an intentional attempt to do violence to her. (R) Well, now, tbe other part of it, you haven\u2019t asked for my explanation. I think you understand tbat. (S) To be guilty of an assault with intent to commit rape, there must not only be an assault, but there must be an intent to have intercourse with her, against her will, by force, and in spite of all resistance tbat she might make.\u201d (T) Tbe exceptions relate to tbe portions between tbe letters \u201cQ\u201d and \u201cR\u201d and \u201cS\u201d and \u201cT.\u201d Here also tbe vice pointed out is tbe degree of proof, tbat tbe jury \u201cmust be satisfied,\u201d instead of according to tbe correct degree \u201csatisfied beyond a reasonable doubt.\u201d\nIn this connection it is true tbat in other portions of tbe charge tbe correct rule is given. Nevertheless, where tbe court charges correctly in one part of the charge, and incorrectly in another, it will be held for error, since tbe jury may have acted upon tbat which is incorrect. This bolding is in accordance with uniform decisions of this Court. Templeton v. Kelley, 217 N. C., 164, 7 S. E. (2d), 380, and numerous cases cited. See also In re Will of West, ante, 204, 41 S. E. (2d), 838.\nIn fine, it may be and doubtless is tbat tbe words \u201cgreater weight of evidence\u201d instead of \u201cbeyond a reasonable doubt\u201d and tbe word \u201csatisfied\u201d instead of \u201csatisfied beyond a reasonable doubt\u201d were slips of tbe tongue or errors in transcribing. Yet they appear in tbe record, and we must accept it as it comes to us. S. v. Gause, supra.\nSince tbe case must go back for a new trial, it is deemed unnecessary to consider other assignments, and we do not pass upon them.\nFor errors shown, there will be a\nNew trial.",
        "type": "majority",
        "author": "Winborne, J."
      }
    ],
    "attorneys": [
      "Attorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State.",
      "Phin Horton, J. Brie McMichael, and H. Bryce Parlcer for defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "STATE v. GEORGE W. JOHNSON.\n(Filed 5 June, 1947.)\n1. Rape \u00a7 27\u2014\nWhere, in a prosecution ior assault with intent to commit rape, there is sufficient evidence to support at least a verdict of guilty of an assault upon a female, defendant\u2019s motion to dismiss under G. S., 15-173, is properly denied.\n2. Criminal Raw \u00a7 58b, 53k, 78e (2) \u2014\nAn instruction defining the quantum of proof required of the State as \u201cby the greater weight of the evidence\u201d must be held for reversible error even though the inadvertence is in the statement of contentions and not brought to the trial court\u2019s attention at the time.\n3. Criminal Raw \u00a7 53b\u2014\nWhere, in giving additional instructions in response to a juror\u2019s request, the court charges that the jury \u201cmust be satisfied\u201d from the evidence rather than \u201csatisfied beyond a reasonable doubt,\u201d the charge must be held for prejudicial error even though in other portions of the instructions the court had correctly stated the intensity of proof required of the State.\n4. Criminal Law \u00a7 81c (2) \u2014\nWhere the court in different portions of the charge gives correct and incorrect instructions as to the quantum of proof required of the State, the charge must be held for prejudicial error, since the jury may have acted upon that portion which was incorrect.\n5. Criminal Law \u00a7 77d\u2014\nThe Supreme Court is bound by the record as filed.\nAppeal by defendant from Clement, J., at January Term, 1947, of Eoesyth.\nCriminal prosecution upon indictment charging defendant with crime of assault upon a certain named female with felonious intent, by force and against her will, to ravish and carnally know.\nVerdict: Guilty.\nJudgment: Imprisonment pronounced.\nAttorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State.\nPhin Horton, J. Brie McMichael, and H. Bryce Parlcer for defendant, appellant."
  },
  "file_name": "0587-01",
  "first_page_order": 635,
  "last_page_order": 637
}