dissenting. The defendant, first ascertaining from the girl that her two brothers and her father were absent, in a field a half mile away, made a sudden and violent assault upon her, “grabbed her by her left hand and started to put his right to her neck.” The assault is unquestioned. What was his intent was an inference of fact which only a jury is authorized to draw. The defendant afterwards confessed that his purpose in going there was to procure sexual intercourse with the girl. The jury, from the violence and manner of the assault, the seclusion of the place, the avowed purpose of the defendant in going there, from his flight and possibly from their knowledge of the parties, might well *689have come to tbe conclusion tbat tbe intention of tbe defendant was to have carnal intercourse witb tbe girl against her will. If so, he was guilty as charged.
It is trae Judge Ashe has stated “tbat the defendant must have intended to gratify his passions on tbe person of tbe woman at all events and notwithstanding any resistance on her part.” Every larvyer since, who has represented a defendant charged with this dastardly offense, has relied upon this expression. There can be no doubt that tbe Judge so charged the jury in this case, for there is no exception to the charge. What Judge Ashe said is a correct statement of the law, but it does not mean that when the man desists from his purpose, there is no evidence that he did not intend to have intercourse “at all events and notwithstanding resistance on the woman’s part.” That would simply repeal the statute against assault with intent to commit rape, for if the defendant succeeds, the crime is rape.
What was the defendant doing when he suddenly and violently assaulted an unprotected girl, out of reach of help from her male relatives, of whose absence he had learned upon inquiry? Was he trying to persuade her to yield and to overcome her maiden reluctance by solicitation or was he attempting to have carnal knowledge of her “forcibly and against her will?” Was it an attempted seduction or was it “felonious gallantry ?” It was necessarily one or the other, for his purpose to procure sexual intercourse is admitted. It could be procured only with the girl’s consent or against her will; there is no other alternative, no middle ground. The jury of twelve men, to not one of whom he objected, and who were doubtless sensible and intelligent gentlemen, have found, beyond a reasonable doubt in the mind of a single member of the jury, that the assault was made with an intent on the part of the defendant to have sexual connection “forcibly and against the will of the woman.” The intelligent Judge, who *690presided, not only thought the evidence should be submitted to the jury, but, notwithstanding; the gravity of the punishment, did not think the interests of justice required him to set the verdict aside.
The grand jury by a vote of at least twelve of its members found that there was prima facie evidence of the defendant’s guilt. Thus two full juries at least, and the Judge, after seeing and hearing the witnesses, found that there was evidence. Are a majority of the lawyers who compose this Court, sitting out of sight and hearing of the witnesses, without knowledge of their character, or bearing on the stand, able to say that all those officers have so grossly erred- — not as to the law, but as to the facts, and that there was no evidence at all before them!
In vain shall we look for any decision in England, the home of the jury system, for a case in which an appellate court, sitting out of sight and hearing of the witnesses, has held in a criminal ease that there was no evidence when the jury unanimously held that there was enough to satisfy each of them beyond a reasonable doubt, and the presiding Judge has refused to disturb the verdict. It is an innovation of recent introduction here, even in civil cases, by judicial construction, for there is no statute to authorize it. The tendency of courts to “amplify jurisdiction” is gradually extending the doctrine until this jurisdiction is invoked in nearly every criminal case that comes up to any appellate court, and in almost certainly every appeal in which a railroad company is defendant. If the expansion of such jurisdiction is continued, instead of the “ancient mode of trial by jury,” the jury will become a mere advisory committee whose findings the appellate court may disregard at will. This is already nearly attained in some States. The evils of this assumption of jurisdiction are well stated by Judge Bynum in Wittowsky v. Wasson, 71 N. C., 451.
*691In my bumble judgment, the unanimous verdict of twelve men, when not disapproved by the trial judge, is a far more accurate mode of ascertaining the truth of disputed allegations of guilt than the majority vote of the members of an appellate court who differ among themselves as to the effect of evidence which is necessarily imperfectly sent up in cold type. Is there a clearer insight into the inferences to be deduced from evidence given to those who did not hear or see the.witnesses than to those who did? Those who wrought our constitutions thought otherwise. They believed juries were more competent than judges to find the facts, and equally impartial. The triers of fact should be subject to challenge. A judge of the law should not be. Such has always been the thought of Anglo-Saxon peoples. Justice Brewer of the Supreme Court of the United States well said in a recent opinion that the great difficulty now was to secure the conviction of the guilty, and expressed his conviction that the interests of justice would be best served by returning to the English system under which, to this day, appeals are not allowed in criminal cases. In his opinion, appeals in criminal cases had been detrimental, and had not served the interests of justice in this country.
It cannot be said there was no evidence. There is more evidence here to sustain the charge than in State v. Garner, 129 N. C., 536, and fully as much as in State v. Page, 127 N. C., 512. In this case there was the forcible assault, there was the avowed intent to procure sexual intercourse, there was the lonely place remote from help, there was the inquiry as to nearness of relatives, there was the “stand off” by a determined woman with her dubbed hoe and the defendant’s flight from justice. There may have been other things which the jury were entitled to consider and which give much of its peculiar value to trial by jury. Suppose the girl was white and the defendant a negro ? Would that not be a matter to be *692considered on the question whether this was an attempted seduction or an assault with intent to succeed against the woman’s will ? State v. Garner, supra. The jury could see for themselves the color of the parties. We cannot. It is not in the record, as many other matters cannot be sent up to us in the record. Both may have been white. We do not know. The jury knew, and the}1' also knew the character of the -witnesses and of the defendant, which was a valuable help in arriving at a true inference as to this man’s intent and whether or not the defendant was attempting to succeed “against her’ will” in having sexual intercourse with the girl. We know7 nothing of the character of the defendant beyond tire fact, in the record that he immediately fled and was found in jail in another county, apparently for some other offense. Would a man of that character be likely to attempt a girl of the virtue and determination shown here, unless he had expected to succeed “forcibly and against her will?” If the intent was solicitation, why so forcible and sudden an assault made ? It is possible it might be explained perhaps, but the jury found that it was not. And because when she clubbed her hoe and told him if he did not “let her alone, she would kill him with the hoe,” he believed her and turned her loose, are we to find as a matter of law that therefore when he “grabbed her” the defendant did not then intend and was not then attempting to gratify his passions on her “forcibly and against her wall ?” The jury, the proper triers of the fact, have passed upon defendant’s intentions in making the assault. They were within their province and within their sworn duty. I do not think we have the legal right to reverse their judgment on the facts, nor that we can come to a more just conclusion thereon than the jury and the trial judge.