On the motion for nonsuit, we think the evidence was sufficient to go to the jury and fully justified the verdict. It is true that there were discrepancies in the testimony of the principal witness, such as came, no doubt, from her infirmity, but as to the main features of the case her testimony was clear, direct, and consistent; and looking upon it in its most favorable light to the State, the motion for nonsuit was properly overruled. S. v. Eubanks, 209 N. C., 758, 184 S. E., 839; S. v. Ammons, 204 N. C., 753, 169 S. E., 631.
A motion for new trial for misconduct or prejudice of the jury in a criminal case cannot be entertained in this Court when made here for the first time. That is a motion which must be made in the court below at the proper time, according to the practice of the court.
The charge of rape and that of carnally knowing a female person between the ages of twelve and sixteen years, under C. S., 4209; ch. 140, sec. 1, Public Laws of 1923, were properly joined in separate counts in *643one indictment, since they are related in character and grew out of the same transaction; C. S., 4622; and are properly left to the jury under the general plea of not guilty, without any requirement on the part of the State to make an election. S. v. Smith, 201 N. C., 494, 497, 160 S. E., 577. Under the evidence in the case at bar the jury might, with propriety, find the defendants guilty on the second count.
These offenses are of such a nature as to come within the provisions of C. S., 4640, permitting the jury to find the defendants guilty of the lesser crime, if they do not deem the evidence sufficient to warrant a conviction on the first.
Again, in a case of this sort the State is not forced to undergo the embarrassment of inconsistency in pointing out evidence of consent to sustain the conviction for the lesser crime. Even if there were no evidence from which consent could be inferred, when the jury has convicted the defendants of the lesser offense, when they should have been convicted of a graver crime, while the verdict is plainly improper; S. v. Smith, supra; S. v. Cox, 201 N. C., 357, 361, 160 S. E., 538; the verdict is favorable to defendants and they cannot complain. S. v. Walls, 211 N. C., 487, 495, 191 S. E., 232; S. v. Smith, supra; S. v. Ratcliff, 199 N. C., 9, 153 S. E., 605; S. v. Allen, 186 N. C., 302, 119 S. E., 504.
This case is unique, perhaps, in the prosecution for offenses against this statute, since both defendants have been tried and convicted under the same charge of having carnal knowledge of a female child over twelve and under sixteen years of age, who has not previously had sexual intercourse with any person. C. S., 4209. This dumb girl unhesitatingly pointed out Hall as the first person who had intercourse with her and Presnell as the one who abused her immediately afterwards, both defendants having taken off her clothing and both defendants replacing it after their purpose was accomplished. Each defendant, under the evidence, aided and abetted the other in the crime committed, and both could be considered as actually present at the time of the commission, since both participated in the preparation for the crime. S. v. Hart, 186 N. C., 582, 120 S. E., 345.
An interesting question, unnecessary to the decision of this case, arises as to whether, under the evidence in this case, Presnell could plead the act of Hall, with consent of the girl, in his own defense against the charge of carnally knowing the girl, since he aided and abetted Hall in his crime and participated therein. S. v. Porter, 188 N. C., 804, 125 S. E., 615.
We have examined all the exceptions in the case and find no reversible error.
No error.