The defendant was convicted of a simple assault, and it was (834) adjudged that he be confined in the county jail for a term of two years, from which judgment he appealed.

AVERY, J.

If it be conceded that where a physician induces a female to submit to an examination of her person, by the false and fraudulent representation that he is putting his hands upon her in good faith, for the purpose of diagnosing and treating a disease, when in fact his object is only to gratify a licentious desire, he is equally guilty, in contemplation of law, with one who takes the same liberties against her consent, and the avowed intention of gratifying his lusts, it is none the less a sound proposition of law, that whether the person charged with the assault be a physician or not, he may successfully meet such charge by showing to the satisfaction of the jury that, without resorting to falsehood or deception, he had the consent of a girl seventeen years old to put his hand upon her person as he did. Whether his intention was to desist after fondling her or to have carnal intercourse with her, if she should continue to yield to him, he was not guilty if her consent was gained otherwise than by using his professional character to practice a fraud.

There was serious conflict in the testimony of the prosecutrix and the defendant as to what the latter actually did and said (835) at her bedside. The charge of the learned judge seems to have been founded upon the idea that the jury, in passing upon the facts, were so restricted that they must adopt either the theory of the State or that arising out of the defendant's testimony, and were not at liberty to take into consideration the whole of the evidence and predicate their finding upon an hypothesis not entirely consistent with the theory advanced or the testimony offered in support of it by either the prosecution or the defense. Counsel may have contended before the jury that another witness corroborated the testimony of the plaintiff to the extent of showing that the mother of the prosecutrix had expressed apprehension as to the consequence to her daughter of over-exertion on the previous afternoon. The jury may have concluded that, under the honest belief that the prosecutrix was suffering, and with the bona fide purpose of relieving her, the defendant first entered her room, but that, subsequently, on discovering a willingness on her part to submit to liberties, that, as she must have known, constituted no part of a legitimate medical or surgical examination, he determined to go further and did so with her assent plainly indicated. It appeared that two men, sleeping in the loft just above her, heard an outcry nor loud remonstrance, and the prosecutrix did not say that she called for any one; yet, though she told the defendant that she was not sick, needed not attention and pushed his hand away, she submitted, without objection made in a tone sufficiently loud to be heard in the loft, to liberties, accompanied by expressions of endearment and solicitations to go with him into the adjacent room, that counsel may have argued were inconsistent with the idea that she yielded only because he was conducting an examination as a physician authorized by her mother. The jury might have been influenced, too, by the fact that the father of the prosecutrix appeared, according to her testimony, at the door and saw the defendant going out of the room twice; that he subsequently neither asked nor received a full explanation from his daughter (836) for nearly two days after, though he ordered her to dress and go to his son's house on that night. The rule laid down by Wharton (Cr. Law, sec. 1156) is, that proof of the assent of the woman, given in ignorance of the fraud that was being practiced by the medical man, where the physician, under pretense of examination, has sexual intercourse, will not constitute a defense to the charge of assault. The principle was first established in the cases of Rex v. Stanton, 1 Car. K., 415, and Rex v. Case, 4 Cox C. C., 220. In the latter case the instruction given by the recorded and approved by the Court, was that "the girl was of age to consent, and if they thought she had consented to what the prisoner had done, they ought to acquit the prisoner, but if they were of opinion that she was ignorant of the nature of the prisoner's act and made no resistance solely from the belief that she was submitting to medical treatment, they ought to find him guilty." In that case the physician actually had carnal intercourse with a girl of fourteen, who had been placed under his care by her parents for medical treatment.

We think that the questions whether the prosecutrix consented after being kissed and told that she was a sweet girl (even conceding the truth of her own statement) to the still greater liberties with her person, which she testifies that the defendant took, and whether, if she did consent, she was influenced to yield solely because she thought the defendant was making a medical examination of her person at the request of a parent, should have been fairly submitted to the jury; as, in Rex v. Case, the judge ought to have been told the jury that, in one view of the evidence, the defendant was not guilty, as well as that in the other view, he was guilty of an assault. In Rex v. Case it seemed to have been conceded, or not seriously disputed, that the girl of fourteen (837) was innocent, and did not understand what the physician was doing. In the case at bar there was evidence tending to show that the prosecutrix was not of good character, and it was admitted that she was in her eighteenth year. The defendant had a right to demand that the attention of the jury should be directed to the question whether she understood the manifest purpose of one who kissed and fondled her, and knew that his conduct was not that of a physician making a medical examination in good faith, but still submitted quietly until her father appeared upon the scene. But in response to the requests of the defendant, the judge embodied his instruction upon this point in two or three propositions, culminating in the sentence: "If he acted in good faith as a physician, and did what he did as such, he is not guilty; otherwise, he is guilty." So that the jury were not left at liberty to reach the belief, from the evidence, that thought the defendant was not in good faith examining the prosecutrix as a physician, still that she understood and assented to what he did, or that she understood that he was putting his hands upon her with the purpose of gratifying his lusts, and made no objection because she was indifferent or ready to submit to what he did, if not to still greater liberties.

Without adverting to the other exceptions, either to the admission of testimony or to the charge, and deciding questions that may not be raised upon another trial, it is perhaps best to advert to the exception to the judgment of the court. We think that there was error in imposing greater punishment than a fine of fifty dollars or imprisonment for thirty days, when the defendant was found guilty of a simple assault only. In all of the cases cited by the Attorney-General in support of the judgment, this Court laid stress upon the fact that the person assaulted suffered great bodily pain, though the physical injury did not prove permanent. In State v. Shelly, 98 N.C. 673, the opinion rested upon the ground that "the injury was not simply painful and humiliating, but disfigured the face seriously, bruised the eyes, closed (838) one of them entirely and probably permanently impaired the sight," and, therefore, that serious damage was done. The facts in S. v. Roseman, 108 N.C. 765, were that a female prisoner was shipped by a jailer with a buggy-whip, so as to cut the flesh on her back and arms. In S. v. Huntley, 91 N.C. 621, thought the Court seems to have taken into consideration the mental anguish of the injured party, the reason for sustaining the jurisdiction of the Superior Court, which is made most prominent, was, that the physical suffering of the injured party "must have been severe for a day or two and more or less severe for several days." So that in every instance it has been declared essential, in order to give the Superior Court jurisdiction, that the bodily pain caused by the assault should be severe, if not permanent. The fact that in any given case the person injured must have endured mental anguish may aggravate the offense, but cannot, in the absence of physical injury giving rise to great bodily pain, constitute, within the meaning of the statute, "serious injury." There was no evidence in our case tending to show that the prosecutrix suffered from bodily pain at all. The cases cited are distinguishable from that at bar in the fact that the jury found that the defendant was guilty of the offense charged in the indictment, which was within the jurisdiction of the Superior Court. In our case the defendant was found guilty of a simple assault only, and the jurisdiction of the court is sustained on the ground that it is included in the higher offense with which he was charged.

For the error pointed out, the defendant is entitled to a new trial.

Error.

Cited: S. v. Albertson, 113 N.C. 634; S. v. Hight, 124 N.C. 846; S. v. Battle, 130 N.C. 656.

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