dissenting: Chapter 80, sec. 3269, provides that, on the trial of any indictment, the prisoner may be convicted of the crime charged therein or of a less degree of the same crime, or of an attempt to commit the crime charged, or of an attempt to commit a less degree of the same crime, and doubts having arisen whether, on indictment for rape, a verdict for an ordinary assault could be rendered, the Legislature enacted -séction 3268 of Eevisal, in terms as follows: “On the trial of' any person for rape, or any felony whatsoever, when the crime charged shall include an assault against the person, it shall be lawful for the jury to acquit of the felony and to find a verdict of guilty of assault against the person indicted, if the evidence shall warrant *418such finding; and when such verdict shall be found, the court shall have power to imprison the person so found guilty of an assault for any term now allowed by law in cases of conviction when the indictment was originally for the assault of a like character.”
In the present case the defendant has been indicted and convicted of the capital offense of rape, and there were facts in evidence to support the charge. Prosecutrix testified directly to the rape, and that, at the beginning, prisoner cocked his gun, which he had with him, and said, “Damn you, I’m coming on anyhow, and if you holler, I’ll shoot your brains out,” etc. On the part of defendant there was evidence tending to show that he had formerly had sexual intercourse with the prosecutrix by her consent; that on this occasion he went to see prosecutrix at her home, and she asked prisoner if he had any money, and, on being told that he had none, she became enraged, cursed witness, and they got into a fight; that she, the prosecutrix, had a piece of crooked iron and hit witness on the arm, and witness slapped her; “then we grabbed hold of each other and fell over on a chair, and she struck her face on the chair as we fell,” etc. “We fell on the floor, and I was shaking her to keep her from hitting me with the iron when Miss Gildon ran up. Miss Gildon said, 'Oh! I’ve caught you!’ or something like that, and prosecutrix then turned me loose, and I turned her loose,” etc.; that witness did not commit a rape or have sexual intercourse with her at that time.
This witness, Mary Gildon, had testified in effect: “I saw Ert Lance at Caroline Crook’s house the day before Christmas. He was on her between her legs. I saw him hit her in the mouth. He was down on her, her legs drawn up; she was bloody. He was doing that way [witness shows with her arms how defendant was shoving, with his arms, the arms of prosecu-trix]. I said, 'Uh, huh! I’ve caught you.’ He raised up, got his gun. I was at one door of the house, and he went out the other. He fired his gun. I thought he shot me in the back.”
With this and other testimony for and against the prisoner, the court was asked, among other things, to charge the jury that, on the bill of indictment and evidence, they could render *419one of five verdicts: (1) Guilty of rape, (2) Of assault with intent, (3) Assault with deadly weapon, (4) Simple' assault, (5) Not guilty.
The court declined to charge that prisoner could be convicted of either an assault with a deadly weapon or a simple assault, and charged instead that, on this bill and the facts in evidence, the jury could convict of rape, assault with intent, etc., assault on a woman by a male above the age of 18 years, and not guilty, and, in thus modifying the prayers for instructions, I am of opinion that the court committed an error which entitles prisoner to a new trial.
It is a well recognized principle with us that where one is indicted for a crime and, under the same bill, he. may be convicted of a lesser degree of the same crime, and there is evidence tending to support the milder verdict, the prisoner is entitled to have this view presented to the jury under a correct charge, and an error in this respect is not cured by a verdict convicting the prisoner of a higher offense, for, in such case, it cannot be determined that the jury would not have convicted of the lesser crime if the view had been correctly presented. S. v. White, 138 N. C., 715; S. v. Foster, 130 N. C., pp. 666-673; S. v. Jones, 79 N. C., 630.
In the present case defendant, as stated, is indicted for the crime of rape. Under such an indictment, and by express provision of our statute law, a verdict of assault with a deadly weapon or even of simple assault could be rendered if there is evidence to support such a position.
There was testimony of prosecution from which an assault with deadly weapon could well have been rendered, and evidence on the part of the prisoner tending to Show he was guilty, if at all, of only a simple assault.
Not only was the law on such an issue not correctly presented in the charge, but his Honor in effect told the jury that they could not render any such verdict, and -virtually directed them not to consider the evidence offered by prisoner at all.
It is no answer to this position that the jury were allowed to convict of an assault on a woman by a male over 18 years of age, and that the defendant could have had the benefit of every posi*420tion open to biro, on tbe evidence considered under that charge.
There was evidence, as stated, on the part of the defendant tending to show a simple assault — an ordinary fight between them. It was all the defense the prisoner attempted.
Under our statutes and principles established by our decisions for the ascertainment of the truth in these cases, he was entitled to have the testimony considered according to its usual and natural significance. In Jones’ case, supra, the Court held: “Where, upon a trial for homicide, the only evidence relied upon by the State to connect the prisoner with the offense are his own confessions, and those confessions tend to> disclose a case of mutual combat upon sudden provocation between the prisoner and the deceased, it was held to be error to exclude that view of the case from the jury, however much it may conflict with opposite theories arising from other portions of the evidence.”
Applying the principle, I am of opinion that this conviction has not been had in accordance with our laws, and prisoner is entitled to a new trial..
There is evidence in the record from other sources tending to corroborate the position insisted on by defendant, but no amount of reiteration pro ,or con, however appealing or eloquent, can or should be allowed to justify, a plain departure from established legal principles, and especially when a prisoner is on trial for his life.
I am authorized to say that Associate Justice Walker concurs in this dissent.