#### STATE v. ELICK, a slave.

Where a negro made an assault upon a white woman, with an intent to ravish her, and afterwards changed his purpose and desisted, it was Held nevertheless, that he was guilty under the statute.

Indictment for an assault with intent to ravish, tried before Dick, J., at the last Fall Term of Davidson Superior Court.

The defendant was a slave, belonging to one Delap, and the person alleged to have been assaulted, was a young woman by the name of Susannah Pickett. She stated that she had been into the neighborhood on a visit, and returning home with two other females, the road she had to travel, deflected from the other, and she proceeded alone, but just as they parted, they saw some one on the road she had to take; that after having gone by herself about a quarter of a mile, she heard some one approaching her from behind ; she looked around and discovered that it was a negro in a fast walk; that she stepped to the side of the road to let him pass, but he came up behind her, seized her by the shoulders without saying a word, and pulled her to the ground, and pulled her clothes up to her knees; that she hallooed as loud as she could and struggled to get loose; that the negro tried to choke’heiq but she continued to cry out and resist until two persons who lived near, Mr. and Mrs. Hill, came to her relief; that when the fellow saw them coming, he got off1 of her and ran off into the woods.

Lazarus Hill and his wife stated that they heard a female voice crying very loud, c O Lord! O Lord!’ that they both ran

*69as fast as they could towards the point from which it seemed to come, and after going about a quarter of a mile, they came within sight of the prisoner; that he had Susannah Pickett down on the ground, and was on her body; that when they got within about seventy-five yards of them, the prisoner became aware of their approach, got of of her, and walked fast across the road buttoning up his pantaloons, and soon disappeared in the woods, and the young woman came running up to them very much alarmed.

One George Hege swore that he and the prisoner were working together, when the latter told him he intended to ask Miss Pickett to have intercourse with him, and if she refused, he would kill her, and then he would do as he pleased.

One Alexander Miller said that he met with the prisoner on one Sunday, about a month before the occurrence in question ; that Elick said Susannah Pickett is a very pretty girl.” To which he replied in the affirmative. The negro said be “intended to ask her for some.” Witness told him she would resent it; to which the negre replied he would knock her in the head, and then he would do as he pleased.

John Miller testified, substantially, as the last two witnesses.

There was much direct and circumstantial testimony as to identity of the negro; Miss Pickett was not certain, but Hill was certain aá1 to the prisoner’s identity, and was fully confirmed by the circmnstances, and,other collateral evidence. The character of the female was proved to be very good for truth and chastity.

The Court charged the jury, among other things, that if they doubted as to the identity of the defendant; or, whether any assault was made ; or if made, whether it was done with the felonious intent -charged, they ought to acquit.

The defendant’s counsel then asked the Court to instruct the jury as follows: If they, on-consideration of the whole evidence in the case, shall not be satisfied that the prisoner1 assaulted the witness, Susannah Pickett, with the intent to have connection with her against her consent, and by violence, they sbonM find for the prisoner.”

*70The Court declined repeating the charge in this particular.

The counsel, for the prisoner, asked his Honor to instruct the jury as follows: If they believed from the evidence, that the prisoner intended to desist from the accomplishment of his purpose to cohabit with the prosecutrix as soon as she resisted, then the offense does not come within the meaning of the act under which he is indicted, and he is entitled to an acquittal.” The Court refused to give the charge,, and the defendant’s counsel excepted.

Yerdict, guilty. Judgment. Appeal.

Attorney General, for the State.

Fowle, for the defendant.

Manly, J.

The instruction asked for was properly refused. The terms in which the prayer is couched, are ambiguous, but taken in any sense, it ought not to have been granted. If the instruction asked for were predicated upon the assumption that it was not the purpose of the negro to force the young woman, but merely to solicit and have connection with her. only in case she consented, then it was properly refused, for the reason that it had been twice already given in substancc. If, however, the prayer for the instruction rested on the hypothesis that while the assault was made in the beginning with intent to ravish, the prisoner afterwards, nevertheless, changed his purpose upon being resisted, and concluded not to do so, the instruction was properly refused, because it is utterly untrue as a proposition of law. It involves the absurdity of making the statute null and void. We have considered the case in connection with the facts reported by the Superior Court, and feel constrained to say we discover no mitigating circumstance in it. Besides, the inference of intent on the part of the prisoner, which is to be drawn from the character of the young woman whom he assaulted, and from the respective social conditions of the parties, the whole evidence shows that he had predetermined to force her to his will — that he seized her in prosecution of this purpose, and never ceased from his efforts to accomplish it, until he was approached by *71overpowering force. There is not a particle of evidence reported, to put any other face upon this transaction.

We have carefully examined the record in the case, and find no reason why judgment of death should not be pronounced and executed upon the prisoner, Elicfc.

Per Curiam,

Judgment affirmed.