There was no evidence of an assault with intent to commit rape, and his Honor properly so instructed the jury. There was evidence applicable to the second count. The jury rendered a general verdict of guilty, and a sentence of twelve months' imprisonment was rendered by the court. Defendant appealed on the ground that neither the verdict nor the judgment were in accordance with the law. The defendant stands indicted, first, for an assault with intent to commit rape; and second, for a simple assault. At the close of the evidence his Honor properly instructed the jury that there was no evidence of an assault with intent to commit rape. The jury rendered a verdict of "guilty." The defendant was sentenced to work on the roads for twelve months.
There must be a new trial. The general verdict "guilty" applies to the first count as well as to the second. The jury should have said on which count he was guilty, in order that the proper punishment might follow. His Honor seems to have understood the verdict to be on the first count as he imposed a longer term of imprisonment than is allowed for a simple assault,i. e., 30 days. Code, secs. 987 and 892 (now C. S. 4215 and 1481); S. v.Nash, 109 N.C. 837; S. v. Johnson, 94 N.C. 863; S. v. Albertson,113 N.C. 633.
NEW TRIAL.
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