#### STATE v. GEORGE W. JOHNSON.

(Filed 5 June, 1947.)

1. Rape § 27—

Where, in a prosecution ior assault with intent to commit rape, there is sufficient evidence to support at least a verdict of guilty of an assault upon a female, defendant’s motion to dismiss under G. S., 15-173, is properly denied.

2. Criminal Raw § 58b, 53k, 78e (2) —

An instruction defining the *quantum*of proof required of the State as “by the greater weight of the evidence” must be held for reversible error even though the inadvertence is in the statement of contentions and not brought to the trial court’s attention at the time.

3. Criminal Raw § 53b—

Where, in giving additional instructions in response to a juror’s request, the court charges that the jury “must be satisfied” from the evidence rather than “satisfied beyond a reasonable doubt,” the charge must be held for prejudicial error even though in other portions of the instructions the court had correctly stated the intensity of proof required of the State.

*5884. Criminal Law § 81c (2) —

Where the court in different portions of the charge gives correct and incorrect instructions as to the *quantum*of proof required of the State, the charge must be held for prejudicial error, since the jury may have acted upon that portion which was incorrect.

5. Criminal Law § 77d—

The Supreme Court is bound by the record as filed.

Appeal by defendant from *Clement, J.,*at January Term, 1947, of Eoesyth.

Criminal prosecution upon indictment charging defendant with crime of assault upon a certain named female with felonious intent, by force and against her will, to ravish and carnally know.

Verdict: Guilty.

Judgment: Imprisonment pronounced.

*Attorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State.*

*Phin Horton, J. Brie McMichael, and H. Bryce Parlcer for defendant, appellant.*

Winborne, J.

On this appeal defendant presses for error the refusal of the court to grant his motion for judgment as of nonsuit entered at close of State’s evidence, and renewed at the close of all the evidence, pursuant to provisions of G. S., 15-173. These motions, being general, may not be sustained. Since the prosecution is upon an indictment charging an assault with intent to commit rape, which is a felony, G. S., 14-1, and G. S., 14-22, it is lawful for the jury to acquit of the felony and to find a verdict of guilty of an assault upon a female if the evidence warrants such a finding. G. S., 15-169. Therefore, there being sufficient evidence to support at least a verdict of guilty of an assault upon a female, the motion to dismiss under G. S., 15-173 was properly denied. See *S. v. Jones,*222 N. C., 37, 21 S. E. (2d), 812. Compare *S. v. Gay,*224 N. C., 141, 29 S. E. (2d), 458.

However, defendant’s exceptions to portions of the charge of the court to the jury are well taken.

One exception has this setting, and is as follows: Opening the charge by saying that the bill of indictment charges defendant with an assault with intent to commit rape, and after enumerating various kinds of assaults, including that with which defendant is-charged, and instructing the jury that the gravamen of an assault is an intentional attempt, by violence, to do injury to the person of another, the court continued as follows: “There has been evidence offered in this case by both the State *589and tbe defendant. Tbe defendant contends tbat be is not guilty; tbe State contends tbat you should be satisfied, by tbe gTeater weight of tbe evidence, tbat be is guilty.” Tbe exception is directed to tbe foregoing quotation.

Tbe rule of law as to tbe degree of proof, “greater weight of tbe evidence,” as there set forth, is manifestly erroneous. Ordinarily a misstatement of contentions must be called to tbe attention of tbe court at tbe time, or else it will be deemed to be waived. But not so as to statements of a contention with respect to applicable law. See *S. v. Gause, ante,*26, 40 S. E. (2d), 463, citing *McGill v. Lumberton,*215 N. C., 752, 3 S. E. (2d), 324; *S. v. Calcutt,*219 N. C., 545, 15 S. E. (2d), 9; *Stanley v. Hyman-Michaels Co.,*222 N. C., 257, 22 S. E. (2d), 570.

Another exception to tbe charge has this setting: After tbe jury bad retired and later returned to tbe courtroom, and asked and received further instruction, and again retired and later returned to tbe courtroom, and asked further instruction on one certain point, on which, the jury was “tied up on,” tbe court gave further instruction, concluding with tbe following: “Tbe mere fact tbat be might try to persuade her to submit herself to him, wouldn’t make him guilty of tbe offense. (Q) To make him guilty of an assault, you must be satisfied tbat be bad made' an intentional attempt to do violence to her. (R) Well, now, tbe other part of it, you haven’t asked for my explanation. I think you understand tbat. (S) To be guilty of an assault with intent to commit rape, there must not only be an assault, but there must be an intent to have intercourse with her, against her will, by force, and in spite of all resistance tbat she might make.” (T) Tbe exceptions relate to tbe portions between tbe letters “Q” and “R” and “S” and “T.” Here also tbe vice pointed out is tbe degree of proof, tbat tbe jury “must be satisfied,” instead of according to tbe correct degree “satisfied beyond a reasonable doubt.”

In this connection it is true tbat in other portions of tbe charge tbe correct rule is given. Nevertheless, where tbe court charges correctly in one part of the charge, and incorrectly in another, it will be held for error, since tbe jury may have acted upon tbat which is incorrect. This bolding is in accordance with uniform decisions of this Court. *Templeton v. Kelley,*217 N. C., 164, 7 S. E. (2d), 380, and numerous cases cited. See also *In re Will of West, ante,*204, 41 S. E. (2d), 838.

In fine, it may be and doubtless is tbat tbe words “greater weight of evidence” instead of “beyond a reasonable doubt” and tbe word “satisfied” instead of “satisfied beyond a reasonable doubt” were slips of tbe tongue or errors in transcribing. Yet they appear in tbe record, and we must accept it as it comes to us. *S. v. Gause, supra.*

Since tbe case must go back for a new trial, it is deemed unnecessary to consider other assignments, and we do not pass upon them.

For errors shown, there will be a

New trial.