CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF NORTH CAROLINA, AT RALEIGH. JANUARY TERM, 1877. STATE v. JONAH BROOKS. Rape Married Woman -- Consent obtained by fraud. fraud vrtialis consent? - why not have it Carnal knowledge of a married woman, obtained by fraud in persona ing her husband, does not amount to rape; Therefore, Where B was indicted for an assault with intent to commit rape on a married woman, ard the Court charged the jury, that, if he intended to have connection with her by fraud in personating her husband, he was guilty: Held to be error. INDICTMENT, for an assault with intent to commit rape, tried before Furches, J., at Fall Term, 1876, of UNION Superior Court. During the argument, defendant's counsel asked the Court. to charge the jury, that there was not sufficient evidence of intent to justify a verdict of guilty. This the Court refused to do, but left the question of intent to the jury. The facts, upon which the instructions were asked, and the instructions given, are sufficiently stated in the opinion. of this Court. Verdict of guilty. Motion in arrest, and rule for new trial, STATE . BROOKS. overruled and discharged. Judgment and appeal by defendant Attorney General for the State. Mr. John W. Hinsdale for defendant, submitted: I. Assault with intent to commit rape is not committed unless rape would have been complete had the assault been successful 2 Arch. Crim. Pr. & Pl., 305; 8 Car. & P., 786; 2 Park. (N. Y ), 174; 50 Barb., 128; State v. Sam., 1 Winston, 300 II. Rape caur ot be committed by fraud, unaccompanied by force, R. & Ry., 487 8 Car. & P., 265; Id., 286. These cases are cited with approval by Bishop, Wharton, Archbold, Russell and Chitty. 8 Cox, C. C., 223; 6 Ala., 765 1 Car. & P., 415; Id., 746; 4 Leigh (Va.), 648; 8 Eng. (Ark.), 360; 11 Ark, 389; 50 Barb., 144; 2 Swan. (Tenn.), 394; 30 Ala.. 54; 2 Bennett & Heard. L. C. C., 254; 1 Den. C. C., 89; Whart. Crim. Law, § 1,146. FAIRCLOTH, J. The defendant was indicted and convicted of an assault with intent to commit rape on the person of P. Jane Williams. The material facts are as follows: The defendant was living with the husband of the prosecutrix, and usually slept in one end of the house, and the prosecutrix and her husband in the other end; there being a partition wall and door between them, each room having an outer door. She had placed her bed on the floor in the month of August, and she and her husband were asleep upon it, the defendant having retired to sleep in his room. About 11 o'clock at night she "was awakened and found some one in the bed with her. He had pulled up her clothing and had his hand it what? on her naked person, and was trying to get on her, and she pushed him off and turned over and awoke her husband and STATE T. BROOKS. Her whispered to him, that there was a man in the room. husband got up; the defendant by this time had gotten to the outer door" "that His Honor charged the jury, among other things. before they could find the defendant guilty, they must be satisfied that his intention was to ravish the prosecutrix, to have illicit connection with her by force and against her will, or that he intended to do so by committing a fraud upon her, by falsely personating her husband." This is the only part of the case we find it necessary to consider, and we are of opinion, that the alternative part of this instruction is erroneous. Rape is the carnal knowledge of any female of ten years. or more, "by force and against her will," and an assault with intent to commit rape must be such as would amount to rape if the purpose had been accomplished. It is mani fest that the defendant was endeavoring to have an improper connection with the prosecutrix, but this may be a very different thing from an intent to commit rape. His intention, however, is a question for the jury. His Honor should have instructed the jury to consider, whether the defendant's intention was to accomplish his purpose by force, if necessary; or by exciting and soliciting her consent without force; or by fraud in personating her husband; and that in the first view he was guilty, but in either of the others he was not guilty. In the second view, if he intended to desist on the first intimation of resistance, he is not guilty, because there was no force against her will; and, in the third view, he is not guilty, because fraud is not force, except in that class of cases where the prisoner has been in some way instrumental in disabling the prosecutrix to make resistance. This last view has not been heretofore decided in this State, but was decided in England, as above indicated, in Rex v. Jackson, Russell & Ryan, C. C., 486; and in a recent |