#### STATE v. HAROLD D. ROY and STATE v. JAMES D. SLATE.

(Filed 2 May, 1951.)

1. Criminal Law § 44—

The refusal of a motion for continuance will not be held for error when defendants do not give the name of the alleged essential witness who was out of the State or make it appear that any effort was made to secure the witness’ presence at the trial, and further there is no affidavit that defendants had not had time to prepare for trial.

2. Rape § 26: Criminal Law § 52a (6) —

After announcement by the solicitor that he would not seek a conviction of rape, defendant was convicted of assault on a female with intent to commit rape. Held: Defendant’s contention that his motion to nonsuit should be allowed because all the evidence tended to show the commission^ of the crime of rape rather than the less degree of the crime of which he was convicted, is untenable, since the indictment included the lesser offense and the conviction thereof was favorable to defendant. G.S. 15-169.

3. Criminal Law § 6c: Army and Navy § 3—

The duty of a soldier to obey the orders of his superior officer refers only to lawful commands relating to military duty, and therefore a defendant soldier’s contention that in committing an assault upon a female he was acting under the orders of his sergeant is feckless, since it could not constitute a defense.

4. Criminal Law § 52a (2)—

The incredibility of the State’s testimony cannot justify nonsuit, since the credibility of the witnesses is for the jury and not for the court.

Appeal by defendants from Nimochs, J., January Term, 1951, of HaRNBTT.

Criminal prosecution upon indictments charging the defendants with the crime of rape of a certain named female person.

The cases were consolidated for the purpose of trial. Whereupon, the Solicitor announced that he would not seek a verdict of rape, but would seek a verdict of guilty of assault on a female with intent to commit rape.

The defendants entered pleas of not guilty.

Yerdicts: The jury found the defendant Harold D. Roy guilty of assault on a female with intent to commit rape, and returned a verdict against James D. Slate of guilty of an assault on a female. From sentences imposed on the respective verdicts, both defendants appealed to the Supreme Court, assigning error.

*559 Attorney-General McMullan and Assistant Attorney-General Bruton for the State.

H. F. Sea-well, Jr., for Harold D. Roy.

Charles Ross and McNeill McK. Ross for James D. Slate.

DeNNY, J.

Tbe defendants except to and assign as error tbe failure of tbe court to grant tbeir motion for a continuance. Tbe motion was made on tbe ground tbat a witness, most vital to tbeir defense, was out of tbe State.

It will be noted tbe name of tbe witness was not given nor does it appear tbat any effort was made to secure bis presence at tbe trial. Tbe alleged crime was committed on 29 November, 1950, and an investigation of tbe alleged facts was made shortly thereafter. A true bill was found against both defendants on 8 January, 1951, and tbe cases were called for trial on 11 January, 1951. However, there was no affidavit by defense counsel tbat they bad not bad time to prepare for trial. S. v. Creech, 229 N.C. 662, 51 S.E. 2d 348; S. v. Gibson, 229 N.C. 497, 50 S.E. 2d 520. This assignment of error will not be upheld.

Tbe defendant Roy contends tbat since all tbe evidence pointed toward tbe crime of rape, and tbe State not having asked for a conviction of tbat crime, tbat bis motion for nonsuit on tbe charge of assault with intent to commit rape should have been allowed. Tbe contention is without merit. For, it is well settled tbat an indictment for an offense includes all tbe lesser degrees of tbe same crime. S. v. Moore, 227 N.C. 326, 42 S.E. 2d 84; S. v. Gay, 224 N.C. 141, 29 S.E. 2d 458; S. v. Jones, 222 N.C. 37, 21 S.E. 2d 812; S. v. High, 215 N.C. 244, 1 S.E. 2d 563; S. v. Williams, 185 N.C. 685, 116 S.E. 736; S. v. Hill, 181 N.C. 558, 107 S.E. 140. And although all tbe evidence may point to tbe commission of tbe graver crime charged in a bill of indictment, tbe jury’s verdict for an offense of a lesser degree will not be disturbed, since it is favorable to tbe defendant. G.S. 15-169; S. v. Bentley, 223 N.C. 563, 27 S.E. 2d 738; S. v. Harvey, 228 N.C. 62, 44 S.E. 2d 472; S. v. Matthews, 231 N.C. 617, 58 S.E. 2d 625.

Tbe defendant Slate, who is a private in tbe United States Army and stationed at Fort Bragg, contends tbat at tbe times referred to in tbe State’s evidence, be was acting under tbe command of bis sergeant, a non-commissioned officer, to wit, Sergeant Roy, and did only what be was directed to do, and is, therefore, not liable for bis conduct in connection with this alleged offense. Tbe contention has no merit. Tbe duty of a subordinate to obey a superior officer, while one is subject to military law, has reference only to lawful commands of such superior officer, in matters relating to military duty. And there is certainly nothing on this record to indicate tbat either of these defendants were engaged in any activity *560relating to military duties on tbe nigbt in question. Title 10, U.S.O.A, Section 1536.

Tbe evidence adduced in tbe trial below was ample to support tbe verdicts rendered, and need not be detailed herein. Counsel for tbe defendant Roy admits bis chief complaint is against tbe jury. He contends tbe State’s evidence was not worthy of belief and we should either grant tbe defendant Roy a new trial or a nonsuit. Tbe court does not pass upon the credibility of tbe witnesses for tbe prosecution upon a motion to nonsuit. Tbe weight to be given such evidence is for tbe jury to decide. S. v. Bowman, 232 N.C. 374, 61 S.E. 2d 107. Tbe defendants offered no evidence except tbe certificate of tbe physician who examined tbe prosecuting witness on tbe day after tbe alleged crime. They simply elected to rely upon tbe weakness of tbe State’s evidence and lost.

We have carefully examined all tbe exceptions and assignments of error and in tbe trial below we find

No error.