The defendant is charged in the indictment with the crime of assaulting Maggie Hasty, who was about 12 years of age, with the intent to commit rape, and upon conviction was sentenced to a term of five years in the State's Prison.
The assault is alleged to have been committed at the home of the prosecuting witness, where the defendant, who is an old negro man, was working; and the only person on the premises, except the defendant and the witness, was a little sister of the witness. Neighbors lived within a short distance, but, if the evidence of the State is believed, the place of the assault was at the back of the house, on the stairs leading into the basement, which was at least partially concealed.
Maggie Hasty was examined as a witness for the State, and testified to the assault and the circumstances surrounding her at the time. Among other things, she said that the defendant had his hand on her person under her clothes, when a neighbor called her, and that he then desisted. The witness was permitted to say that the defendant had put his hands on her before on the day of the assault, and the defendant excepted. Also on what part of her person the (645) defendant had his hands when the neighbor called her, and defendant excepted. Also that when committing the assault the defendant "would kind of listen," and defendant excepted. *Page 520
She was asked on cross-examination if the defendant was "considered bright," and if he did not have the reputation "of not being strong-minded." Upon objection, the witness was not permitted to answer either question, and the defendant excepted.
The defendant tendered the following prayers for instructions:
(1) That the evidence must show beyond a reasonable doubt, not only an assault, but that the defendant intended to gratify his passion on the person of Maggie Mae Hasty, and that he intended to do so at all events, notwithstanding any resistance made on her part. If they are not so satisfied, they cannot convict the defendant of an assault with intent to commit rape upon the said Maggie Mae Hasty.
(2) That the defendant can be convicted of the lesser offense of assault and battery or a simple assault.
(3) That the jury must find beyond a reasonable doubt from the evidence that the defendant placed his hand upon the person of Maggie Mae Hasty with the intent and purpose at the time, notwithstanding any resistance she might make, and at all events, to gratify his passion on her person, before he can be convicted of an assault with intent to commit rape.
There was no request to charge the jury that there was not sufficient evidence to sustain the indictment, but upon the rendition of the verdict the defendant moved the court to set aside the verdict (1) as being against the weight of the evidence, (2) for errors in the admission and rejection of testimony, for errors in his Honor's charge to the jury, (3) for failure to give the special instructions asked by the defendant. Upon an examination of the record, we find no (646) error which entitles the defendant to a new trial. The objection that there was not sufficient evidence to sustain a conviction cannot be entertained after verdict. S. v. Harris, 120 N.C. 578;S. v. Huggins, 126 N.C. 1055; S. v. Williams, 129 N.C. 582. But if it had been made in apt time, it could not avail the defendant, as the evidence is as conclusive as in S. v. Page, 127 N.C. 512, and stronger than in S. v. Garner, 129 N.C. 536, in which judgments upon verdicts of guilty were approved.
His Honor gave the defendant the benefit of all instructions requested, as appears from the following excerpt from his charge:
"The evidence must show, beyond a reasonable doubt, not only an assault, but that the defendant intended to gratify his passion on the *Page 521 person of Maggie Mae Hasty, and that he intended to do so at all events, notwithstanding any resistance made on her part; and if the evidence does not so satisfy your mind, you cannot convict the defendant of the assault with intent to commit rape upon the said Maggie Mae Hasty. The defendant can be convicted of the lesser offense of assault and battery or simple assault. The jury must find, beyond a reasonable doubt, that he placed his hands upon the person of Maggie Mae Hasty with the intent and purpose at the time, notwithstanding any resistance she might make, and at all events, to gratify his passion on her person, before he can be convicted of an assault to commit rape."
It was competent for the State to prove that the defendant placed his hands on the prosecutrix at another time on the day of the assault, as evidence of another assault of which the defendant could have been convicted under the indictment, and as tending to prove the animus and intent of the defendant. S. v. Murphy, 84 N.C. 742; S. v. Parish,104 N.C. 692; S. v. Adams, 138 N.C. 693.
The evidence objected to was that a short time before it is alleged the defendant committed the assault with the felonious intent, that the prosecutrix passed the defendant as he was sitting on the steps, and that he caught her by the ankle and said: "You (647) are as fat as a pig, ain't you?"
The exceptions to the refusal to permit the witness to say whether or not the defendant was considered bright, or had the reputation of not having a strong mind, are without merit. There is nothing to indicate what was expected to be proved, or what answer would have been given to the questions, and so far as we can see, the witness would have answered both questions in the negative.
It does not, therefore, appear that the defendant has been prejudiced by the ruling. The evidence of the prosecutrix, that the defendant was listening, was objected to upon the ground that it was an expression of an opinion. We do not think so. The rule applicable to evidence of this character is clearly and accurately stated in McKelvey on Evidence, p. 220et seq., as follows:
"The instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time, are, legally speaking, matters of fact, and are admissible in evidence.
"A witness may say that a man appeared intoxicated or angry or pleased. In one sense the statement is a conclusion or opinion of the witness, but in a legal sense, and within the meaning of the phrase, `matter of fact,' as used in the law of evidence, it is not opinion, but is one of the class of things above mentioned, which are better regarded *Page 522 as matters of fact. The appearance of a man, his actions, his expression, his conversation — a series of things — go to make up the mental picture in the mind of the witness which leads to a knowledge which is as certain, and as much a matter of fact, as if he testified, from evidence presented to his eyes, to the color of a person's hair, or any other physical fact of like nature.
"This class of evidence is treated in many of the cases as opinion admitted under exception to the general rule, and in others as matter of fact — `shorthand statement of fact,' as it is called. It seems more accurate to treat it as fact, as it embraces only those impressions (648) which are practically instantaneous, and require no conscious act of judgment in their formation. The evidence is almost universally admitted, and very properly, as it is helpful to the jury in aiding to a clearer comprehension of the facts."
This principle has been approved in Britt v. R. R., 148 N.C. 37;Wilkinson v. Dunbar, 149 N.C. 20, and in other cases in our reports.
We find
No error.
Cited: Dickerson v. Dail, 159 N.C. 542; Daniel v. Dixon, 161 N.C. 379;S. v. White, 162 N.C. 617; In re Smith's Will, 163 N.C. 466; S. v.Williams, 168 N.C. 199; Lewis v. Fountain, ibid., 279; Warren v. Susman,ibid., 464; Renn v. R. R., 170 N.C. 141; Bane v. R. R., 171 N.C. 333.