#### STATE vs. LORENZO D. CAIN.

There is no error in a Judge refusing to state a conclusion of law upon a state of facts not established by the evidence in the cause.

INDICTMENT for assault and batteRy, 'tried before his Honor Judge Bailey, at the Spring Term, 1855, of Bladen Superior Court.

The violence was alleged to have been committed upon the person of Mary C. McDuffie, who was sworn in the case, and testified that she was spending the.night with a female neighbor whose husband had gone from home; that some time in the night, after she had gone to bed and was asleep, she was waked up by the defendant — that he got upon the bed where she was lying and put his arms around her neck — that she told him to let her go, but he would not; she repeated her demand that he should let her go, but he still continued on the bed with his arm around her neck; and that this continued for some five or ten minutes.

The witness was asked by the defendant’s counsel, if she did not assent to his lying on the bed and putting his arms around her neck? She said that *“*she did not, but his putting his arm around her neck was against her will.” There was other evidence not material to be stated. There was also evidence of the good character of the witness.

The defendant’s counsel asked his Honor to instruct the jury “ that if, from the evidence, they believed that Miss McDuffie *202connived at the act of the defendant, or in any way consented thereto, or remained on the bed with the defendant and was not kept there by him, or if the defendant intended no insult or rudeness, that he was not guilty.”

The Court told the jury that it was a question of credibility; that the defendant’s counsel had contended that the witness had not told the truth ; that the least touching of the person of another in a rude, angry or insulting manner amounted, in law, to a battery; that if she consented to what was done, they should acquit; but if they believed the evidence of Miss McDuffie, the defendant was guilty.

The defendant’s counsel excepted to the charge of the Court as well for refusing to instruct as asked, as for the instructions which he did give.

Yerdict of guilty. Judgment and appeal.

*Attorney*General, for the State.

McDugald, for the defendant.

Nash, C. J.

Two points are made in the defense: *first,*that the prosecutrix consented to the act of the defendant for which he is now indicted; and *secondly,*that the Court violated the act of 1794 in the charge to the jury. The charge as required was substantially given with the exception of the last clause. IIow the Court could be required to tell the jury that if the defendant intended no rudeness or insult, he was not guilty, in the absence of all evidence to show that such was the fact, is somewhat strange. His Honor’s charge was as favorable to the defendant as it could have been. The case was one of mere credibility.

The charge did not violate the act of 1794. The credibility of the State’s witness was impeached by the cross examination: she denied that she assented to his lying on the bed, but that he put his arm around her nock against her will; that when he got upon the bed she was asleep. The Judge instructed the jury that if they believed the witness, the defendant was guilty; in other words, if they believed from her *203testimony that the defendant committed the acts complained of, in the way the witness swore they were committed, that they amounted to an assault and battery. The act of Assembly forbids a Judge on the trial of a cause “ to give an opinion whether a fact is fully or sufficiently proved;” but it does not forbid him to tell the jury if, from the evidence, they believe the fact to exist, what the law is upon the point and to apply the law to the facts; which is in substance what the Judge charged here.

Pee CueiaM. Judgment affirmed.