#### STATE v. WILLIAM ED GAMMONS.

(Filed 19 December 1963.)

1. Rape § 17—

¡In order ¡to be -guilty of assault wltjb intent to commit nape, defendant ■must Lave ftihe intent at lea-st at some time during the assault to gratify ■his passion on the person -of the woman at all events, notwithstanding any resistance on her part.

2. Criminal Law § 2—

Intent is an attitude or emotion of the mind -and is usually susceptible of proof only by circumstantial evidence.

S. Rape § 18—

Evidence that defendant assaulted prosecutrix and attempted to have sexual intercourse with her under the pretense that the aet was a re-*754ligioiu-s rite necessary to her cure, brat that the idefemdiainit immediately desisted when she .threatened to scream, *is held*insufficient to show that defendant had at any time .during the assault intended to have intercourse with her at all events, notwithstanding any resistance on her part, and nonsuit of the charge of the felony should have been allowed.

4. Rape § 6—

In a prosecution of la defendant for assault with intent to commit rape, nonsuit iof the felony does not 'entitle the defendant to his discharge, but 'the iState may prat defendant on trial under the same indictment for assault on a female, defendant being a male over ,the age of 18. GjS. 14-33, G.S. 16-169.

Appeal by defendant ‘from *Shaw, J.,*April 29, 1963, Regular Criminal Session ('second -week) oí SuRRY.

This iis a criminal action.

Indictment: Assault with intent to commit rape. Plea: Not guilty. Verdict: Guilty as 'charged. Judgment: Imprisonment.

*Attorney General Bruton and Assistant Attorney General Bullock for the State.*

*Blalock & Swanson and C. Orville Light for defendant.*

Mooke, J.

At the close o,f the State’s evidence and again at the conclusion of all the evidence, defendant -moved for judgment oí non-suit as -to the felony charged and that the case be submitted to the jury .only 'a® to- the -offense -of assault on a female.

There was a prior appeal in -this case- at the Fall Term *1962. State v. Gammons,*258 N.C. 522, 128 S.E. 2d 860. At the trial from -which that appeal .arose, defendant failed to renew his motion for nonsuit .at -the .close -of all the evidence, -and the appeal did not present -the question of nonsuit. We now ‘consider it for the first time.

Prosecutrix, a married -woman and mother of two small children, is 25 yearns of -age; defendant is 46. At the time of the alleged crime, 18 July 1961, they both resided at Banner-town -in Surry 'County. Defendant wais a -minister of the-Gospel and -pastor of the “Faith -and Gospel” Holiness Church. Prosecutrix had been- -attending this .church for nine years.

The onlly account of the alleged occurrence is- ¡from prosecutrix. She testified: “. . . (T)ihe defendant . . . and hiis wife came to my home. . . . (I)t was . . . -around 6 o’clock . . . P.M. ... I talked to his .wife. I talked with them in the oar; they didn’t get out ... I w-as on the side that -she was on. She did talk to me in the presence of the defendant. When islhe talked to me he -did not make any statement . . . He heard everything -sire -was -saying. She said that -the Lord- had show*755ed Bill (defendant) that I had to oome out to their house that night; that he 'had to pray for me and that it was real important. She wanted to know if I would come, and I told her yes .... I did go .... I drove my car. My two children went with me. ... I think I arrived at hiis home somewhere around 8:00. . . . When I wais there in the house with William Ed Gammons and his wife, they asked the children if they wanted to go to the store to get ice cream and they did, so they left . . . their two children amid my two, and they had been gone a little bit and so Bill (defendant) -said that we would have prayer while they were gone amid so he told me which room to go in. He told me this bedroom to go in. . . . (Y) ou have to go down a flight of steps. ... I went to this bedroom downstairs. I did not go with him, I went by myself. . . . (H) e came in the room and he shut the door, Ibut I didn’t think anything aibout it, and just as quick ia.s he shut the door, he laid his hands on my head mod started praying, and he prayed a few words and then he had both hands on my head and he just give a push and pushed me down on the bed and came right down on top of me, as quick as he done that, he said that the Lord had told him that he had to have sexual relations with me and said that I would be healed that way, .and I said, 'No, I don’t 'believe in no. such mess as that.’ Well, he already had his hand up my dress and was trying to get my underclothes down and I started crying 'and I said, ‘No, I don’t believe no such mess ais that,’ and he said, ‘Well, you know that I would-n’t do that if the Lord hadn’t told me to.’ . . . (H)e got my underclothes down.' a little ways and then I felt his body touch mine, and I told him when he did that, I said, ‘If you don’t leave me alone, I’m going to scream,’ and he said, ‘You hush crying,’ said, ‘My wife will hear you,’ and I isaid, ‘I’m going to scream if you don’t leave me alone,’ and when I said that, he got up and left me -alone. ... I got up off the 'bed and I straightened my clothes up ... I reached over for the door to try to get out, but the door was locked' (thumblatched) and I was so nervous I never could get it unlocked and he -turned around and unlocked it, but before he undocked the door he said, ‘If you tell -anybody about this,’ said, ‘Yo-u know you will die.’ Said, ‘You know what a -disobedient person gets’.”

To convict -a defendant on .the charge of an assault with intent to commit rape the State must prove not only -an 'assault but that defendant intended to. gratify his passion on -the person of the woman, and that he intended to do so, at all events, notwithstanding -any resistance on -her part. *State v. Burnette,*242 N.C. 164, 172, 87 S.E. 2d 191. I-t is not necessary to complete the offense that the defendant retain the intent throughout the assault, but if he, at any time during *756■the assault, ¡have an .intent to gratify (his passion, upon the woman, notwithstanding any •resistance on hear part, the defendant would be .guilty of the offense. *State v. Petry,*226 N.C. 78, 81, 36 S.E. 2d 653. Intent is an attitude or emotion of the mind and is seldom, if ever, [susceptible of proof by direct evidence, it must ordinarily be proven (by circumstantial evidence, i.e., by facts and circumstances from which it may 'be inferred. *State v. Petry, supra; State v. Adams,*214 N.C. 501, 199 S.E. 716.

Assuming the .truth o,f prosecutrix’s testimony, as we must on the motion ¡to nonsuit, defendant 'assaulted prosecutrix and intended to gratify his passion upon her person, but the evidence fails to show, circumstantially or otherwise, that he intended at any time during the assault to have ¡carnal knowledge oif her, at .all events, notwithstanding airny resistance on ¡her part. Defendant was in hiis own home and his ¡wife was in .another room within earshot of any outcry. He did not threaten to. do her violence if she refused to yield. When she threatened to scream he immediately desisted. It is true that he thumiblatched the door, but this1 seems more ¡consistent with the intent to avoid interruption in case he engaged in the act than any intent tio> 'imprison or restrain prosecutrix. He, himself, released the lock. He .attempted to persuade her to yield by pretention that the sex act was a religious rite necessary to her cure. But his conduct did not show any intention to overcome her resistance by force ‘and have the intercourse at all events.

With respect to nonsuit for insufficiency of 'the evidence of the felonious intent, 'compare the instant case factually with the following: *State v. Moore,*227 N.C. 326, 42 S.E. 2d 84; *State v. Gay,*224 N.C. 141, 29 S.E. 2d 458; *State v. Hill,*181 N.C. 558, 107 S.E. 140; *State v. Smith,*136 N.C. 684, 49 S.E. 336; *State v. Jeffreys,*117 N.C. 743, 23 S.E. 175; *State v. Massey,*86 N.C. 658.

The court 'erred in denying defendant’s motion ¡to nonsuit tire felony. However, ¡the 'defendant is not entitled to discharge. The State may put 'him on .trial on -the change of assault on ¡a female, he being a male person, over 18 yeans of age. ‘G.S. 14-33. A new indictment is not necessary ; he may ibe tried on this misdemeanor ¡charge ¡under the present bill. G.S. 15-169; *State v. Beam,*255 N.C. 347, 121 S.E. 2d 558; *State v. Jones,*222 N.C. 37, 21 S.E. 2d 812; *State v. Hill, supra.*

Defendant makes 42 assignments of error. Since they may ¡not recur upon a retrial we dio not discuss here the questions involved. We note that [the Attorney General confesses error in the charge on alibi, and states “¡there are other assignments of error Which appear to have merit.” As to the law pertaining to¡ alibi we call attention to¡ *State v.*
      *757
      *Walston,*259 N.C. 385, 130 S.E. 2d 636; *State v. Allison,*256 N.C. 240, 123 S.E. 2d 465.

New trial.