#### STATE v. HENRY STORKEY.

The Supreme Court has no power to grant a new trial because a verdict is found upon insufficient testimony, or against the weight of testimony. The sufficiency of the testimony offered is a question exclusively for the jury. Whether a verdict is against the weight of the testimony is a matter exclusively for the discretion of the Judge who presides at the trial.

It is not necessary, in North Carolina, to show emission in order to prove rape, even where the indictment concludes against the form of the “Statute” — not “Statutes:” the 20th Sec. of Rev. Code, chap, 36, having abolished all distinction between these phrases.

An indictment for rape need not charge that the person ravished is over ten years of age.

Rape, tried before Warren, J., at Spring Term 1868, of tbe Superior Court of Beaufort.

No statement of tbe facts is necessary.

Attorney General, for the State.

Hodman, contra.

Reade, J.

In tbe case made for this Court, tbe evidence is stated in detail as tbe basis of exceptions by the defendant, That tbe evidence was insufficient to satisfy a jury beyond a reasonable doubt, and, That their verdict was against tbe weight of testimony.

If there was any evidence, its sufficiency was a question for tbe jury, and, Whether tbe verdict was against tbe weight of tbe evidence was a question for tbe discretion of tbe Judge who presided at tbe trial. In neither case can this Court interfere. There was some evidence tending to show tbe defendant’s guilt, and it may not be improper for us to say in support of tbe propriety of the conviction, that in our opinion it was plenary.

Tbe defendant’s second exception, that there was no proof of emission, cannot avail him. In the first place, tbe witness said that tbe defendant “ penetrated her person and ravished *8her against her will.” That is evidence from which the jury might infer emission. But, in the second place, it is not necessary, under our Statute of 1860, chap. 30, to prove emission. This was probably not intended to be controverted by the prisoner’s counsel. His objection probably is that the case is not governed by the Statute of 1860, because the indictment concludes, not against the “ Statutes ” but, against the “ Statute.” But our act (Bev. Code, chap. 25, sec. 20,) provides that no indictment shall be vitiated by reason that it concludes against the Statutes, instead of against the Statute, or vice versa.

We therefore do not perceive any ground for a new trial.

The motion in arrest of judgment because the indictment does not charge that the female was over ten years of age, was properly refused. Our Statute makes it rape carnally do know a child under ten years of age, even although she .consent; but it in no way affects the guilt of one who carnally knows a female above that age against her will. Nor •is it necessary to state the age except where the victim is ■.under ten, nor even then unless the act is with the child’s -consent.

Let it therefore be certified to the Court below that there is no error, in order that the sentence of the law may be executed.

Per CuriaM. No error.