N. C. Code, 1935 (Michie), section 4205, is as follows : “Every person convicted of an assault with intent to commit rape upon the body of any female shall be imprisoned in the State’s Prison not less than one nor more than fifteen years.”
In S. v. Hewett, 158 N. C., 627 (629), we find: “Thus we see that practically all definitions of an attempt to commit a crime, when applied *504to the particular crime of rape, necessarily imply and include ‘an intent’ to commit it. There may be offenses when in their application to them there is a distinction between ‘attempt’ and ‘intent,’ but that cannot be true as applied to the crime of rape. There is no such criminal offense as an ‘attempt to commit rape.’ It is embraced and covered by the offense of ‘an assault with intent to commit rape,’ and punished as such.”
Mrs. T. E. Royster testified: “That she went to the house and found Miss Price crying; that she had a bruise on her knee; that the front room was torn up. Q. ‘State what you heard Miss Price say?’ Ans.: ‘Miss Price told the doctor she had been attacked and tried to be raped by the defendant.’ ” To the above question and answer the defendant excepted and assigned error. From the other evidence in the case we do not think it prejudicial. Mr. Gunter testified “that he went to the home of the prosecutrix and ‘found her mouth and nose bleeding;’ that she told him that the defendant had attacked her.” This testimony was admitted without objection.
The defendant excepted and assigned error to the following part of the charge in brackets: “[So, gentlemen of the jury, whether the ulterior criminal intent existed in the mind of the defendant in this case at the time of the alleged criminal act must of necessity be inferred and found from other facts which in their nature are the subject of specific proofs. It must not, ordinarily, be left to the jury to determine from the facts and circumstances whether or not the ulterior criminal intent existed at the time of the act, if you find the act was committed.] In some cases, gentlemen of the jury, the inference will be irresistible, while in other matters you may have great difficulty in determining whether or not the accused committed the act charged with in the record, which is the criminal purpose. So that means, in this case, gentlemen of the jury, the charge contained in the bill of indictment, the State must satisfy you beyond a reasonable doubt not only that the defendant committed an assault on Miss Evelyn Price, as the court has defined the term assault, but the State must go further and show you beyond a reasonable doubt that the defendant had the intent to carnally know or to have sexual intercourse with her forcibly and against her will, regardless of any resistance she might make. If the State fails to so satisfy you, you will return a verdict of not guilty as contained in the first charge — assault with intent to commit rape. It is proper and you may consider all the facts and circumstances in this case to determine whether or not that intent did exist — that is, we won’t say, we can’t say, that the defendant had that intent but must procure evidence and let the jury consider it and see what happened and let you take into considera*505tion all tbe facts and circumstances surrounding tbe case, and say wbetber or not there was criminal intent or intent to commit rape.”
Tbe portion of tbe charge objected to in connection with the whole charge could not have misled the . jury. It could not be held as prejudicial. At most, it was an inadvertence followed by - a charge unquestionably correct.
The defendant excepted and assigned error to the following part of the charge in brackets: “If the defendant in this case was under the influence of intoxicating liquor to such an extent that his normal functions of body and mind were so interferred with — that is, if he was in such condition that he could not form an intent to commit rape — that is, if he did not know what he was doing and what he was about and what he was trying to do; if he was so affected by the liquor that he could not form an intent, then he could not be guilty of the charge as contained in the bill of indictment. Now, it wouldn’t make any difference, gentlemen of the jury, if a man gets two or three drinks óf liquor or gets Tight’ or 'high’ or gets nerve to commit an assault that wouldn’t be any excuse for committing this or any other crime; but you have got to be in such condition, you don’t have any mind; you don’t have sufficient mind to form an intent, [so I want you to clearly understand that because a man gets under the influence of whiskey and commits a crime, either such crime as charged in the bill of indictment or any other crime, it wouldn’t be an excuse].” Taking the charge as a whole, we think it the law in this jurisdiction.
We do not think the court below invaded the province of the jury by expression of an opinion, but fully complied with N. C. Code, supra, sec. 564. We think on the record that defendant’s exceptions and assignments of error cannot be sustained — they are too attenuated.
On the whole record, we find no prejudicial or reversible error.
No error.