State v. Penn

263 S.E.2d 35, 45 N.C. App. 551, 1980 N.C. App. LEXIS 2660

Opinion

WEBB, Judge.

The defendant assigns as error the court’s charge that the jury could find the defendant guilty of assault with intent to commit rape if they found the victim had not reached her twelfth birthday when the indictment did not charge that the victim was under twelve years of age. Defendant was charged under former G.S. 14-22 (now repealed) with assault with intent to commit rape. Although the words of this statute did not make a difference as to assaults upon females who were under twelve years of age as did the statute in regard to rape, it has been held that G.S. 14-22 is a lesser included offense of G.S. 14-21. A person may be convicted of assault with intent to commit rape without proving he intended to gratify his passion notwithstanding any resistance on the part of his intended victim if the State proves the victim was under twelve years of age. See State v. Hartsell, 272 N.C. 710, 158 S.E. 2d 785 (1967). An indictment may charge an assault with intent to commit rape as in the case sub judice or an assault with intent to commit rape on a female under twelve years of age. In the case sub judice the defendant was not charged with an assault to commit rape upon a female under twelve years of age and it was error for the court to submit the case to the jury on that charge. See State v. Carter, 265 N.C. 626, 144 S.E. 2d 826 (1965); State v. Lucas, 267 N.C. 304, 148 S.E. 2d 130 (1966).

The defendant has brought forward other assignments of error which we do not consider since they may not recur at a subsequent trial.

New trial.

Judges ARNOLD and WELLS concur.