State v. Way

254 S.E.2d 760 (1979)

STATE of North Carolina v. Donnie Leon WAY.

No. 51.

Supreme Court of North Carolina.

May 17, 1979.

*761 Grant Smithson, Asst. Public Defender, Charlotte, for defendant.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Rudolph A. Ashton, III, Raleigh, for the State.

COPELAND, Justice.

The defendant contends the trial court erred in its instruction to the jury on withdrawn consent. We agree; therefore, the defendant must be granted a new trial.

After the jury's deliberations had begun, they returned to the courtroom and asked the judge "whether consent can be withdrawn." The court then instructed them that "consent initially given could be withdrawn and if the intercourse continued through use of force or threat of force and that the act at that point was no longer consensual this would constitute the crime of rape."

It is true that consent can be withdrawn. This concept ordinarily applies, however, to those situations in which there is evidence of more than one act of intercourse between the prosecutrix and the accused. "If the particular act of intercourse was without her consent, the offense is rape without regard to the consent given for prior acts to third persons or the defendant." R. Anderson, 1 Wharton's Criminal Law and Procedure § 302 (1957). See also State v. Long, 93 N.C. 542 (1885).

It is uncontroverted that there was only one act of sexual intercourse involved in this case. Under the court's instruction, the jury could have found the defendant guilty of rape if they believed Beverly had consented to have intercourse with the defendant and in the middle of that act, she *762 changed her mind. This is not the law. If the actual penetration is accomplished with the woman's consent, the accused is not guilty of rape, although he may be guilty of another crime because of his subsequent actions. The court's instruction on this matter was erroneous, entitling the defendant to a new trial.

For the foregoing reason, the defendant is granted a

NEW TRIAL.