(Filed 16 April, 1947.)
Rape § 23—
In a prosecution for assault upon a feinale, evidence tending to sliow only that defendant asked prosecutrix an improper question, unaccompanied by a show of violence, threats or any display of force, is insufficient to be submitted to- the jury, and defendant’s motion to nonsuit should have been granted.
Appeal by defendant from Thompson, J., at October Term, 1946, of FbANKLIN.
Criminal prosecution tried upon a warrant charging defendant with an assault upon a female.
*353Tbfere was a verdict of guilty and from tbe judgment pronounced tbereon, tbe defendant appealed to tbe Supreme Court, assigning error.
Attorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State.
Yarborough .& Yarborough for defendant.
Per Curiam.
Tbis appeal is based upon tbe refusal of tbe court below to grant tbe defendant’s motion for judgment as of nonsuit. Tbe correctness of tbe ruling on tbe motion depends upon wbetber tbe defendant committed an assault upon tbe prosecutrix by asking ber an improper question, unaccompanied by a show of violence, threats or any. display of force. We tbink tbe evidence disclosed on tbe record is insufficient to sustain tbe verdict. Tbe defendant’s motion should have been granted.
Eeversed.