State v. . Jones

Supreme Court of North Carolina

State v. . Jones

21 S.E.2d 812, 222 N.C. 37, 1942 N.C. LEXIS 13

CourtSupreme Court of North Carolina

DecidedSeptember 23, 1942

StatusPublished

Cited by17 cases

This text of 21 S.E.2d 812 (State v. . Jones) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. . Jones, 21 S.E.2d 812, 222 N.C. 37, 1942 N.C. LEXIS 13 (N.C. 1942).

Pincite

Opinion

Winborne, J.

The only exception appearing in the record on this appeal is to the refusal of the court to allow defendant’s motion to dismiss the action as in case of nonsuit' — made in accordance with the provisions of C. S., 4643.

*38 Upon tbe evidence appearing in tbe record, tbis exception cannot be sustained, for as stated in S. v. Hill, 181 N. C., 558, 107 S. E., 140, “We cannot grant tbe nonsuit, as tbe defendant could bave been convicted of an assault tbe same as if it bad been separately charged in an indictment.” C. S., 4639. See also S. v. Holt, 192 N. C., 490, 135 S. E., 324.

However, if there bad been a request for instruction to limit tbe verdict to a less degree of tbe same crime, C. S., 4640, we are of opinion that upon tbe evidence appearing in tbe record, tbe court would bave erred in refusing to give tbe instruction in tbe light of tbe principles enunciated in S. v. Massey, 86 N. C., 658, and approved and followed in S. v. Jeffreys, 117 N. C., 743, 23 S. E., 175; S. v. Smith, 136 N. C., 684, 49 S. E., 334; and S. v. Hill, supra. See also S. v. Allen, 186 N. C., 302, 119 S. E., 504.

In S. v. Massey, supra, Ashe, J., adopting tbe view expressed in tbe dissenting opinion of Rodman, J., in S. v. Neely, 74 N. C., 425, and speaking for tbe Court, said: “In order to convict a defendant on tbe charge of assault with intent to commit rape, tbe evidence should show not only an assault, 'but that tbe defendant intended to gratify bis passion on tbe person of tbe woman, and that be intended to do so, at all events, notwithstanding any resistance on her part.”

In S. v. Hill, supra, Walker, J., stated that tbe above principle has been settled law in North Carolina ever since tbe case of S. v. Massey, supra, was decided.

Tbe judgment below is

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Winborne, J.

The only exception appearing in the record on this appeal is to the refusal of the court to allow defendant’s motion to dismiss the action as in case of nonsuit' — made in accordance with the provisions of C. S., 4643.

*38 Upon tbe evidence appearing in tbe record, tbis exception cannot be sustained, for as stated in S. v. Hill, 181 N. C., 558, 107 S. E., 140, “We cannot grant tbe nonsuit, as tbe defendant could bave been convicted of an assault tbe same as if it bad been separately charged in an indictment.” C. S., 4639. See also S. v. Holt, 192 N. C., 490, 135 S. E., 324.

However, if there bad been a request for instruction to limit tbe verdict to a less degree of tbe same crime, C. S., 4640, we are of opinion that upon tbe evidence appearing in tbe record, tbe court would bave erred in refusing to give tbe instruction in tbe light of tbe principles enunciated in S. v. Massey, 86 N. C., 658, and approved and followed in S. v. Jeffreys, 117 N. C., 743, 23 S. E., 175; S. v. Smith, 136 N. C., 684, 49 S. E., 334; and S. v. Hill, supra. See also S. v. Allen, 186 N. C., 302, 119 S. E., 504.

In S. v. Massey, supra, Ashe, J., adopting tbe view expressed in tbe dissenting opinion of Rodman, J., in S. v. Neely, 74 N. C., 425, and speaking for tbe Court, said: “In order to convict a defendant on tbe charge of assault with intent to commit rape, tbe evidence should show not only an assault, 'but that tbe defendant intended to gratify bis passion on tbe person of tbe woman, and that be intended to do so, at all events, notwithstanding any resistance on her part.”

In S. v. Hill, supra, Walker, J., stated that tbe above principle has been settled law in North Carolina ever since tbe case of S. v. Massey, supra, was decided.

Tbe judgment below is

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

21 S.E.2d 812, 222 N.C. 37, 1942 N.C. LEXIS 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jones-nc-1942.

Opinion

Related

Cite This Page — Counsel Stack