State v. Hamilton

251 S.E.2d 731, 39 N.C. App. 687, 1979 N.C. App. LEXIS 2542

Opinion

WEBB, Judge.

The defendant’s only assignment of error pertains to the charge. He argues the court did not properly define assault on a female. In its charge concerning assault on a female, the court said that one of the things the State must prove is “that the defendant assaulted Patricia McClendon, that he at least laid his hands on her without her consent.” Assuming this was error, we hold it did not harm the defendant. In this case all the evidence including the evidence of the defendant showed there was a completed act of intercourse. The issue was whether this intercourse was with the consent of the prosecuting witness. The charge of assault on a female should not have been submitted to the jury. State v. Bryant, 280 N.C. 551, 187 S.E. 2d 111, cert. denied, 409 (1972). It was error favorable to the defendant and we hold he was not prejudiced by this charge. State v. Small, 31 N.C. App. 556, 230 S.E. 2d 425 (1976).

No error.

Judges Parker and Arnold concur.