STATE of North Carolina
v.
Jerry Raymond CRAIG.
No. 7714SC814.
Court of Appeals of North Carolina.
March 7, 1978.*705 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Elizabeth C. Bunting, Raleigh, for the State.
B. Frank Bullock, Durham, for defendant-appellant.
CLARK, Judge.
The one issue raised by this appeal is whether the indictment for murder supports the conviction of the crime of assault upon a female.
It is established in the criminal law that the greater crime includes the lesser, so that where an offense is alleged in an indictment, and the jury acquits as to that one, it may convict of the lesser offense when the charge is inclusive of both offenses. State v. Williams, 185 N.C. 685, 116 S.E. 736 (1923); State v. Fritz, 133 N.C. 725, 45 S.E. 957 (1903). G.S. 15-170 provides for the conviction of a crime of a lesser degree than the crime charged and for an attempt to commit the crime charged or crime of lesser degree. G.S. 15-169 provides for conviction of assault against the person as a lesser offense of a charge for rape "or any felony whatsoever, when the crime charged includes an assault against the person. . . ."
G.S. 14-33(b) treats the assault upon a female offense by providing in pertinent part that "any person who commits any assault . . . is guilty of a misdemeanor punishable by a fine, imprisonment for not more than two years, or both . . . if . . . he . . . (2) Assaults a female, he being a male person over the age of 18 years; . . ."
The essential elements of the assault upon a female crime are (1) assault and (2) upon a female person by a male person. It has been held that G.S. 14-33 merely prescribes the punishment, that the charge need not allege that defendant was over 18 years of age because it is not an essential element of the crime, and that if defendant does not rebut the presumption that he is over 18 years of age, then the defendant may be sentenced to a larger term of imprisonment upon conviction of assault upon a female. State v. Perry, 291 N.C. 586, 231 S.E.2d 262 (1977); 1 Strong's N.C. Index, Assault & Battery, § 7, p. 475. Thus, assault upon a female has been held to be a lesser offense of the charged crime of rape, or assault with intent to rape. State v. Courtney, 248 N.C. 447, 103 S.E.2d 861 (1958); State v. Morgan, 225 N.C. 549, 35 S.E.2d 621 (1945); State v. Kiziah, 217 N.C. 399, 8 S.E.2d 474 (1940); State v. Williams, 185 N.C. 685, 116 S.E. 736 (1923); State v. Jones, 181 N.C. 546, 106 S.E. 817 (1921); State v. Lance, 166 N.C. 411, 81 S.E. 1092 (1914).
*706 An essential element of the assault upon a female crime is that of sexthat defendant is a male and the victim a female. In State v. Barham, 251 N.C. 207, 110 S.E.2d 894 (1959), it was held that a warrant charging that defendant, being a male person over 18 years of age, assaulted a named person without specifying the sex of such person, does not charge an assault upon a female, notwithstanding that the person named is a female. However, a charge of rape or assault with intent to rape does not ordinarily allege specifically that defendant is male and the victim female; apparently, this is assumed from the nature of the sex offense charged. There can be no such assumption when the indictment charges murder, in the form prescribed by G.S. 15-144, as in the case sub judice. All of the necessary elements of assault upon a female are not accurately alleged in the regular form indictment charging murder. See State v. Perry, 291 N.C. 586, 231 S.E.2d 262 (1977). In State v. Rorie, 252 N.C. 579, 114 S.E.2d 233 (1960), the indictment charged voluntary manslaughter, in the form prescribed by G.S. 15-144, and defendant was convicted of assault with a deadly weapon. It was held that since the character of the weapon used by defendant was not averred, the indictment would not support the verdict, that the indictment for murder or manslaughter should have been so drawn as necessarily to include an assault with a deadly weapon, or should include a separate count to that effect.
We conclude that because the indictment for murder did not contain allegations to include the necessary elements of the crime of assault upon a female, the indictment does not support the verdict. We vacate the judgment and dismiss the cause. The District Attorney may proceed against the defendant if he so elects, with a proper charge of assault on a female, or such other charge as he deems appropriate.
Vacated and dismissed.
VAUGHN and ERWIN, JJ., concur.