RODMAN and BYNUM, JJ., dissenting. It was in evidence that on the 10th July, 1875, the prosecutrix, a woman over ten years of age, and a young girl were returning home, along the track of the North Carolina Railroad, a few miles from Concord. When they reached a point on the railroad at which a country road crossed the same, the prosecutrix and the girl separated. The road taken by the prosecutrix led through a woods about a quarter of a mile, to the house of her brother-in-law, with whom she then resided. Very soon after she left the railroad, she heard the prisoner, a colored man, "holler" to her "to stop," and saw him running after her, distant about seventy yards. The prosecutrix then began to run "as hard as she could," and was pursued rapidly by the prisoner, who "hollered" three times to her to "stop." The prisoner was approaching (426) her, until the road emerged from the woods into a lane. When the prisoner reached the "mouth of the lane," and saw the dwelling house of the brother-in-law of the prosecutrix nearby, he fled in the direction of the railroad and into the woods. He was pursued and taken shortly afterwards at a section house. The prosecutrix was put in great fear by the chase.
The record sent to this court upon appeal says: "There was other evidence bearing on the intent with which he pursued the prosecutrix, which it is not necessary to set forth in detail."
The court charged the jury: "That this was a very serious charge against the prisoner, and it was the duty of the State to prove all the essential facts constituting it, beyond a reasonable doubt, and that if they had reasonable doubt, they must acquit." As to the assault, the court charged: "That if the prisoner pursued the prosecutrix against her will, with the intent violently to take hold of her person, and caused her to flee, and then continued to pursue her, that this would be an assault, and that if they found that the prisoner committed such an *Page 324 assault with the intent carnally to know the person of the prosecutrix violently and against her will, he would be guilty, and they must so find; otherwise they would acquit."
To this charge the prisoner excepted.
The jury rendered a verdict of guilty, whereupon the prisoner moved the court for a new trial. Motion overruled. Sentence pronounced, and the prisoner appealed. That the prisoner upon the facts set out in the statement of the case, committed an assault is not an open question. Statev. Davis, 23 N.C. 125; State v. Rawls, 65 N.C. 334; State v. Vannoy, Ibid., 532.
(427) This it would seem was the only point relied on by the counsel of the prisoner in the court below. We are led to the inference, that the points as to there being no evidence of the intent to commit a rape, was not taken in the court below, by the fact that in stating the case his Honor assumes that the intent charged was fully proved and given upon the trial, and contents himself with setting out "there was other testimony bearing on the intent with which he pursued the prosecutrix, which it is not necessary to set forth in detail." Clearly had the point been made, that there was no evidence fit to be left to the jury as to the intent charged in the indictment, his Honor would have seen that it was necessary to set forth in detail the other testimony, "bearing on the intent with which he pursued the prosecutrix." However this may be, giving the prisoner the benefit of the rule "what does not appear does not exist," and relieving him from the rule "the appellant must show error and intendments are to be taken against him," we will consider the case as presenting the question: Do the facts and circumstances set out amount to any evidence fit to be left to the jury as to the intent charged? Or was the matter of intent left so much in the dark as to make it the duty of the Judge to have instructed the jury to have acquitted the prisoner of the criminal intent charged?
A majority of the court are of the opinion that there was evidence to be left to the jury as to the intent charged. For my own part I think the evidence plenary, and had I been on the jury would not have hesitated one moment.
I see a chicken cock drop his wings and take after a hen; my experience and observation assure me that this purpose is sexual intercourse, no other evidence is needed. *Page 325
Whether the cock supposes that the hen is running by female instinct to increase the estimate of her favor and excite passion, or whether the cock intends to carry his purpose by force and against her will, is a question about which there may be some doubt, as for instance if she is a setting hen and "makes fight" not merely amorous resistance. (428) There may be evidence from experience and observation of the nature of the animals and of male and female instincts, fit to be left to the jury, upon all of the circumstances and surroundings of the case, was the pursuit made with the expectation that he would be gratified voluntarily, or was it made with the intent to have his will against her will and by force? Upon this case of the cock and the hen, can any one seriously insist that a jury has no right to call to their assistance their own experience and observation of the nature of animals and of male and female instincts.
Again; I see a dog in hot pursuit of a rabbit; my experience and observation assure me the intent of the dog is to kill the rabbit; no doubt about it, and yet according to the argument of the prisoner's counsel, there is no evidence of the intent.
In our case, when the woman leaves the railroad and starts for her home and is unaccompanied, to pass through woodland for one-fourth of a mile, a negro man calls to her stop; he is at the distance of seventy-five yards; she with female instinct, from the tone of his voice, looks, etc., sees his purpose and runs as fast as she can through the woodland and makes the head of the lane, in sight of the house before he is able to catch her; he pursues to the head of the lane, and then flees and attempts to escape in the woods.
It is said in the ingenious argument of the counsel of the prisoner, his intent may have been to kill the woman, or to rob her of her shawl or of her money, and if the jury cannot decide for which of these intents he pursued her they ought to find a verdict for the defendant. The fallacy of this argument is, I conceive, in this: it excludes all of the knowledge which we acquire from experience and observation as to the nature of man. This is the corner stone on which the institution of trial by jury rests. To say that a jury are not at liberty to refer to their observation and experience, when a negro man under the circumstances of this case pursues a white woman, starting at, (429) say seventy-five yards and gaining on her and being near when she gets in sight of the house, when he stops and flees into the woods, is, as it seems to me, to take from a trial by jury all of its recommendations.
Our case particularly called for the observation and experience of the jurors as practical men. The prisoner had some intent when he pursued the woman. There is no evidence tending to show that his intent was *Page 326 to kill her or to rob her, so the intent must have been to have sexual intercourse, and the jury considering that he was a negro, and considering the hasty flight of the woman, and the prisoner stopping and running into the woods when he got in sight of the house, and the instinct of nature as between male and female, and the repugnance of a white woman to the embraces of a negro, had some evidence to find that the intent was to commit a rape.
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