The defendant moved for judgment as of nonsuit at the close of the State’s evidence, on the ground that the evidence is insufficient to convict the defendant of an assault with intent to commit rape. The motion was overruled, but renewed at the close of all the evidence and again denied. From this ruling, the defendant appeals and assigns error.
The appellant is relying on S. v. Massey, 86 N. C., 658; S. v. Jeffreys, 117 N. C., 743, 23 S. E., 175; S. v. Smith, 136 N. C., 684, 49 S. E., 336; *328 S. v. Hill, 181 N. C., 558, 107 S. E., 140, and S. v. Gay, 224 N. C., 141, 29 S. E. (2d), 458.
In the case of S. v. Massey, supra, the defendant pursued the prosecu-trix for a considerable distance and threatened to kill her if she did not stop. He continued to pursue her until she arrived in front of a house, where she was met by a colored woman. He then disappeared. This evidence was held insufficient to sustain a verdict of guilty of an assault with intent to commit rape.
The facts in the case of S. v. Jeffreys, supra, were substantially as follows: The prosecutrix, while going to her well, a distance of 175 yards, passed the defendant who solicited her to have sexual intercourse with him. She replied that she was not that kind of woman. Whereupon the defendant said “he was going to have it anyway,” and exposed his privates. He then followed her until she crossed a fence. He threw his foot upon the fence, but went no further. This evidence was also held insufficient to sustain a conviction of an assault with intent to commit rape. To the same effect was the holding in S. v. Hill, supra, where the defendant went to the bedroom of the prosecutrix about eleven o’clock at night, and took hold of her hand and placed his other hand upon her head waking her up. The prosecutrix screamed, ordered him from the room, and he left immediately.
In S. v. Smith, supra, the defendant went to the field where the prose-cutrix was hoeing cotton. After making inquiry as to where the other members of her family were, he offered to hoe out the row of cotton for her, and did so. He then threw away the hoe and grabbed her by the arm and tried to put his other arm to her neck under the chin. Upon a show of resistance, he released her and left the field. On appeal this evidence was likewise held not sufficient to sustain the verdict of guilty of an assault with intent to commit rape.
This Court said, in S. v. Massey, supra: “In order to convict a defendant on the charge of an assault with intent to commit rape, the evidence should show not only an assault, hut that the defendant intended to gratify his passion on the person of the woman, and that he intended to do so, at all events, notwithstanding any resistance on her part. . . . The guilt of a person is not to be inferred because the facts are consistent with his guilt, but they must be inconsistent with his innocence.”
And in S. v. Gay, supra, Winborne, J., in speaking for the Court, said: “While the evidence shows defendant solicitous to gratify his passion on the person of the woman, it is wholly lacking in the intention To do so, at all events, notwithstanding any resistance on her part.’ Yet the evidence in the record would warrant the finding of a verdict of guilty of an assault upon a female person, G. S., 15-169; G. S., 14-33; S. v. Smith, supra (157 N. C., 578, 72 S. E., 853); S. v. Williams, 186 N. C., 627, 120 S. E., 224, and cases cited . . .”
*329In each of the above cases upon which the defendant is relying, it was pointed out, however, that the evidence was sufficient to support a verdict of guilty of an assault and a new trial was ordered.
The State, on the other hand, is relying on S. v. Mitchell, 89 N. C., 521; S. v. Williams, 121 N. C., 628, 28 S. E., 405; S. v. Garner, 129 N. C., 536, 40 S. E., 6; S. v. Leak, 156 N. C., 643, 72 S. E., 567, and similar cases.
The above cases are distinguishable from the one before us and the cases hereinbefore cited, except that of S. v. Garner, supra, in which case the verdict below was sustained by a divided Court.
¥e concede this is a border line case. The prosecutrix was the cashier at a local theatre, and had been engaged in that capacity until immediately before she started home on the evening in question. The intent of the defendant may have been to rob her. The assault took place in a residential section of the City of Greenville. While his conduct was reprehensible and unlawful, we hardly think the evid&nce sufficient to support a verdict of assault with intent to commit rape. Therefore, the defendant is entitled to a nonsuit upon the charge of assault with intent to commit rape, but he is not entitled to his discharge. He could have been convicted of an assault on a female under the present bill of indictment, the same as if such an offense had been separately charged therein. S. v. Jones, 222 N. C., 37, 21 S. E. (2d), 812; S. v. Hill, supra. Furthermore, it is admitted by the defendant “that the evidence is sufficient to make out a case of assault on a female.”
For the reason herein pointed out, there should be a new trial, and it is so ordered.
New trial.