State v. McIver

Seawell, J. Tbe defense, contending tbat tbe conduct of tbe defendant as presented in tbe evidence for tbe State, could not be construed as an assault according to accepted legal definitions, presents for consideration a definition of assault, arising through threat or menace, which makes it essential tbat tbe threat be unqualified and tbat there must be a present intent and ability to carry it out. It is pointed out tbat tbe occurrence for which tbe defendant was convicted took place on a much *317 traveled street in the City of Fayetteville, and that there was, therefore, no opportunity to carry out any unlawful design which the defendant may have entertained. That picture does not fit any too closely the frame of the evidence at the time of the occurrence, to which the attention of the Court is more closely directed. It took place before sunrise in January, about 6:50 o’clock on a gray, misty morning at a time there is little evidence of urban activity. However that may be, perhaps it might he said that the surroundings were not favorable for the commission, at that spot, of a more heinous crime; but nevertheless, as described by the State’s witness, the manner of defendant in approaching her on that Thursday morning was sufficient to put her in fear that some personal violence, or at least unwelcome physical contact, might result from the sexual urge which, from the proposition he made, seemed to animate the defendant. And we observe that North'Carolina is rightly listed as one of the jurisdictions in which it is not essential to the definition of assault, or to the completion of that crime, that there should be a present ability to carry out the threat or menace if it is sufficient in manner and character to cause the person menaced to forego some right of conduct he intended to exercise, or to leave a place where he had a right to he. S. v. Williams, 186 N.C. 627, 120 S.E. 224, 6 C.J.S., “Assault and Battery,” sec. 64, n. 50; S. v. Daniel, 136 N.C. 571, 48 S.E. 544. The facts in the Williams case, supra, strikingly parallel those of the instant case. In that case there was never any physical contact between the defendant and the young woman, the victim of the assault, and the defendant did not follow or pursue her at any time; the incidents upon which the conviction rested occurred in places just as public or more public than obtains in the instant case; as here, there was repetition of the obscene proposal; the language used was not more threatening than that used by this defendant; and the Court unanimously sustained the conviction. We do not attempt to re-array the authorities cited in S. v. Williams, supra, or those collected in S. v. Daniel, supra. But we are constrained to follow the principles laid down in these cases, especially the Williams case, which should be controlling here. The abstract principles of law with which we deal become more concrete when we consider the apparent motivation for the defendant’s conduct. The menace was not that of a blow to be inflicted upon the person, or any similar injury. Its significance goes further hack. Dealing with the State’s evidence and speaking of the reasonable inferences which the jury might draw from it, we have the defendant making repeated obscene proposals to the same woman, implying a sexual desire which, by some obsession, had become directed especially toward her. There is an infer *318 ence of deliberate planning to meet her at the same place on successive mornings, with the obsession still upon him, vocally expressed and apparent in his manner. The witness stated that the defendant went out of his way to directly approach her on her side of the path, and in fear of this menacing movement, coupled with the language which he used, she ran into the street and crossed it to avoid him. The evidence, factually similar to that in the Williams case, cannot but be regarded as stronger in its implications, and it is in law sufficient to support conviction. We find no error. No error.