Opinion
32434, 32435.
DECIDED JULY 14, 1949.
Assault with intent to rape; from Chatham Superior Court — Judge D. S. Atkinson. February 1, 1948.
Aaron Kravitch, Robert E. Falligant, for plaintiff in error.
Andrew J. Ryan Jr., Solicitor-General, contra.
1. Where, by consent, two indictments against the same defendant, growing out of the same transaction, are tried together as one case, and, in one indictment, the offense charged is the burglarious breaking and entering of the dwelling of a named female with intent to commit a felony, to wit, rape, upon which indictment the jury returns a verdict of not guilty, and, in the other indictment, the offense charged is an assault with intent to rape the named female, upon which indictment the jury returns a verdict of guilty, the verdicts are neither inconsistent, contradictory, nor void for repugnancy. The essential elements of the two offenses charged are not identical. One may be guilty of assault with intent to rape and not guilty of burglariously breaking and entering a dwelling with intent to commit rape, for the simple reason that, though he did not break and enter the dwelling, having been invited therein, he did assault a named female with intent to rape when once inside the house. The motion in arrest of judgment is not meritorious, and the court did not err in overruling it.
2. Where, under the facts stated in the preceding holding, there was sufficient evidence to authorize the verdict of guilty of assault with intent to rape, the court did not err in overruling the motion for a new trial.
Judgment affirmed. Gardner and Townsend, JJ., concur.