Upon an examination of tbe record, we find no error which entitles the defendant to a new trial. The objection that there was not sufficient evidence to sustain a conviction cannot be entertained after verdict. S. v. Harris, 120 N. C., 578; S. v. Huggins, 126 N. C., 1055; S. v. Williams, 129 N. C., 582. But if it had been made in apt time, it could not avail the defendant, as the evidence is as conclusive as in S. v. Page, 127 N. C., 512, and stronger than in S. v. Garner, 129 N. C., 536, in which judgments upon verdicts of guilty were approved.
His Honor gave the defendant the benefit of all the instructions requested, as appears from the following excerpt from his charge:
“The evidence must show, beyond a reasonable doubt, not only an,assault, but that the defendant intended to gratify his passion on the person of Maggie Mae Hasty, and that he intended to do so at all events, notwithstanding any resistance made on her part; and if the evidence does not so satisfy your mind, you cannot convict the defendant of the assault with intent to commit rape upon the said Maggie Mae Hasty. The defendant can be convicted of the lesser offense of assault and battery or simple assault. The jury must find, beyond a reasonable doubt, that he placed his hands upon the person of Maggie Mae Hasty with the intent and purpose at the time, notwithstanding any resistance she might make, and at all events, to gratify his passion on her person, before he can be convicted of .an assault to commit rape.”
It was competent for the State to prove that the defendant placed his hands on the prosecutrix at another time on the day of the assault, as evidence of another assault of which the defendant could have been convicted under the indictment, and as tending to prove the animus and intent of the defendant. S. v. Murphy, 84 N. C., 742; S. v. Parish, 104 N. C., 692; S. v. Adams, 138 N. C., 693.
The evidence objected to was that a short time before it is alleged the defendant committed the assault with the felonious *647intent, tbat tbe prosecutrix passed tbe defendant as be was sitting on tbe steps, and tbat be caug'bt ber by tbe ankle and said: “You are as fat as a pig, ain’t you?”
Tbe exceptions to tbe refusal to permit tbe witness to say whether or not tbe defendant was considered bright, or bad tbe reputation of not having a strong mind, are without merit. There is nothing to indicate what was expected to be proved, or what answer would have been’given to tbe questions, and so far as we can see, tbe witness would have answered both questions in the negative.
It does not, therefore, appear tbat tbe defendant has been prejudiced by tbe ruling. Tbe evidence of tbe prosecutrix, tbat tbe defendant was listening, was objected to upon tbe ground tbat it was an expression of an opinion. We do not think so. Tbe rule applicable to evidence of this character is clearly and accurately stated in McKelvey on Evidence, p. 220 et seq., as follows:
“Tbe instantaneous conclusions of tbe mind as to tbe appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to tbe senses at one and tbe same time, are, legally speaking, matters of fact, and are admissible in evidence.
“A witness may say tbat a man appeared intoxicated or angry or pleased. In one sense tbe statement is a conclusion or opinion of tbe witness, but in a legal sense, and within tbe meaning of tbe phrase, 'matter of fact,’ as used in tbe law of evidence, it is not opinion, but is one of tbe class of things above mentioned, which are better regarded as matters of fact. Tbe appearance of a man, bis actions, bis expression, bis conversation — a series of things — go to make up tbe mental picture in tbe mind of tbe witness which leads to a knowledge which is as certain, and as much a matter of fact, as if be testified, from evidence presented to bis eyes, to tbe color of a person’s hair, or any other physical fact of like nature.
“This class of evidence is treated in many of tbe cases as opinion admitted under exception to the general rule, and in others as matter of fact — 'shorthand statement of fact,’ as it is *648called. It seems more accurate to treat it as fact, as it embraces only those impressions which are practically instantaneous, and require no conscious act of judgment in their formation. The evidence is almost universally admitted, and very properly, as it is helpful to the jury in aiding to a clearer comprehension of the facts.”
This principle has been approved in Britt v. R. R., 148 N. C., 37; Wilkinson v. Dunbar, 149 N. C., 20, and in other cases in our reports.