State v. Allen

95 S.E.2d 526 (1956)

245 N.C. 185

STATE v. Paul A. ALLEN.

No. 582.

Supreme Court of North Carolina.

December 12, 1956.

*527 Z. H. Howerton, Jr., Greensboro, for defendant-appellant.

George B. Patton, Atty. Gen., and Harry W. McGalliard, Asst. Atty. Gen., for the State.

*528 PARKER, Justice.

The defendant presents for decision one question: did the trial court commit error in denying his motion for judgment of nonsuit made at the close of the State's evidence.

The warrant charges an assault, not an assault and battery.

In State v. McIver, 231 N.C. 313, 56 S.E.2d 604, 606, 12 A.L.R.2d 967, the facts were as follows: On January 7 about 7:00 a. m. Mrs. Helen Outlaw was walking to work on Russell Street in the city of Fayetteville. Near the railroad crossing she met the defendant, who said to her, "you are looking pretty this morning." On Thursday on her way to work she met him again. It had been raining and she was walking a little to the edge of the sidewalk. She saw the defendant coming toward her, and he started talking. This Court said his words may be fairly construed as an indecent sexual proposal. She was frightened, and ran across the street. On Friday morning she met the defendant at the same place, and he made a similar remark. Police were near by because Mrs. Outlaw had told them of the former occurrences, and they arrested the defendant. This Court held that the evidence was properly submitted to the jury, and said: "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 be."

In State v. Sutton, 228 N.C. 534, 46 S.E.2d 310, this Court held the State's evidence made out for the jury a case of assault, where the defendant's standing and staring at Mrs. Louise Allen caused her to leave her office where she was at work in the courthouse at Plymouth, and go out into the hall, and stand on the first step leading to the courtroom. The defendant followed her into the hall, and continued to stare at her. She stepped up two more steps, and the defendant stepped towards her two more steps still staring. She became frightened and ran up the steps screaming, and the defendant ran up the steps behind her.

In State v. Williams, 186 N.C. 627, 120 S.E. 224, evidence that a 23-year-old man several times accosted a 15-year-old girl on the streets of a town, with improper solicitation, causing her to flee from him in a direction she had not intended to go, and, in her great fear of him, causing her to become nervous and to lose sleep at night, was held to make out a case for the jury of an assault on a female.

In State v. Daniel, 136 N.C. 571, 48 S.E. 544, 545, it is said: "The principle is well established that not only is a person who offers or attempts by violence to injure the person of another guilty of an assault, but no one by the show of violence has the right to put another in fear, and thereby force him to leave a place where he has a right to be."

In State v. Martin, 85 N.C. 508, the Court said: "The principle governing this case has been decided by several adjudications on the subject by this Court. The principle is that no man by the show of violence has the right to put another in fear and thereby force him to leave a place where he has the right to be."

The rules of law in respect to assaults are plain, but their application to the facts is sometimes fraught with difficulty. Each case must depend upon its own peculiar circumstances.

The defendant told Sergeant of Police H. M. Evans he had been watching Nancy Powers for ten days. Considering the evidence in the light most favorable to the State, and giving to it the benefit of every reasonable inference to be drawn therefrom, as the law requires us to do, when a motion for judgment of nonsuit is made, the facts show the defendant repeatedly *529 day after day stopping his car a few minutes within a few feet of Nancy Powers, while she was standing on a public street corner in the city of Greensboro waiting for her ride to go to work, a place where she had a right to be, gazing at her and moving the lower part of his body back and forth, implying a lustful desire directed particularly toward her. It seems apparent from the defendant's conduct and acts, that he, possessed by his lustful obsession for Nancy Powers, deliberately planned to meet her at the same place on successive mornings. Because of fear of him she quit walking the usual way to the place for her ride, and went a different way. On the morning of 23 January 1956 she was standing on the street corner waiting for her ride to work, and three times the defendant drove by looking at her, and, when he would get to the intersection of Textile Drive and Summit Avenue, he would stop his car, sit there, look at her, and seemed to be moving the lower part of his body. At such times he was across a paved street from her. Such acts of the defendant frightened her, and caused her to run to the steps of Proximity School. At that time the Rumleys came along, and she left. Considering the defendant's acts there on the morning of 23 January 1956, in connection with similar acts of the defendant there on 19 January 1956 and 20 January 1956, in the light most favorable to the State, can it be said as a matter of law, thereby taking the case away from the jury, that the defendant's acts on 23 January 1956 were insufficient to constitute a show of violence creating in the mind of Nancy Powers a reasonable apprehension that the defendant was planning to get out of his car and inflict upon her immediate bodily harm to satisfy his lust, and thereby put her in fear, and forced her to run from a place where she had a right to be? In our opinion, the answer to the question is, No: it is a case for the jury.

A show of violence, causing "the reasonable apprehension of immediate bodily harm", State v. Ingram, 237 N.C. 197, 74 S.E.2d 532, 535, whereby another is put in fear, and thereby forced to leave a place where he has a right to be, is sufficient to make out a case of an assault. State v. McIver, supra; State v. Daniel, supra; State v. Martin, supra.

The trial court correctly denied defendant's motion for judgment of nonsuit. In the trial below we find

No error.

JOHNSON, J., not sitting.