STATE v. CROOK. part of the record is too grave a matter to be passed over by this court." The same order of disallowance is made in this case. The Constitution, Art. IV, Sec. 8, gives this court general supervision and control of proceedings in the lower courts. No Error. MONTGOMERY, J., concurring:-I cannot concur in that part of the opinion of the court where it is held that the ordinary grass or hay patch, the natural and spontaneous growth of the soil on the rented premises is embraced in the word "crops" in Section 1754 of The Code, unless it be shown that such was a part of the rental consideration if the rent was to be paid in money, or unless the tenant was by the contract, required to cut the grass or hay and deliver a part of the same to the landlord as rent. The criminal law has already been invoked by legislation, as a redress for civil injuries growing out of this subject as far as it ought to go, in my opinion, and I, as a judge, am not willing to extend its jurisdiction. Otherwise I concur in the opinion. WALKER and CONNOR, J. J. concur in the concurring opinion of Montgomery, J. DOUGLAS, J., concurring:-I concur in the opinion of the court understanding that it applies only to regular meadows or to crops such as clover or cultivated grasses. In the absence of contract, or of such established usage as would raise an implied contract in law, I cannot suppose that a mere volunteer stand of crab-grass, for instance, that should happen. to grow during an unusually wet season, could possibly come within the scope of this opinion. STATE v. BRADLEY. STATE v. BRADLEY. (Filed May 12, 1903.) INTOXICATING LIQUORS-Retailing Special Verdict-Verdict-The Code, Sec. 1076-Acts 1901, Ch. 9, Secs. 70, 105. In a prosecution for retailing liquor without a license, a special verdict which fails to find that the defendant did not have a license to sell is not sufficient to sustain a judgment of guilty. INDICTMENT against Eli Bradley, Jr., heard by Judge E. B. Jones, at Spring Term, 1903, of the Superior Court of POLK County. From a judgment of not guilty on a special verdict, the State appealed. Robert D. Gilmer, Attorney-General, for the State. CONNOR, J. The defendant was charged in the usual form of indictment with retailing without license "a quantity of spirituous liquor by small measure, to-wit, by the measure of a pint." The jury returned for a special verdict "that the defendant sold one quart of whiskey to J. B. Constand, in Polk County, about one year prior to the finding of the bill, for which said Constand in Polk County paid the defendant thirty cents. If upon the above facts the court be of the opinion that the defendant is guilty, the jury so find; otherwise, not guilty." His Honor held that the defendant was not guilty and so adjudged. The Solicitor for the State appealed. We are of the opinion that his Honor could not have adjudged the defendant guilty upon the special verdict, and that he could not render any judgment thereon. The of fense charged is selling liquor without having a license to do so. It is true that it has been the settled law in this State for more than fifty years that "proof of the existence of a license to retail must come from the defendant." State v. STATE v. BRADLEY. Emery, 98 N. C., 668; and upon proof of sale, in the absence of such proof, the jury must find the defendant guilty. If, however, the jury shall, instead of returning a general verdict, find a special verdict, they should find every fact, if it exists, either by proof or presumption, essential to the defendant's guilt, otherwise the court should set the finding aside and direct a venire de novo. State v. Bloodworth, 94 N. C., 918; State v. Bray, 89 N. C., 480; State v. Corporation, 111 N. C., 661; State v. Oakley, 103 N. C., 408. The bill of indictment is drawn under the provisions of Section 1076 of The Code, which makes it a misdemeanor to sell "spirituous liquor by the small measure in any other manner than is prescribed by law." The charge is that the defendant sold "by the measure of a pint." It may, if the allegations are found to be true, be sustained either under that section or Section 103, Chapter 9, Laws 1901. Section 70 of this statute, being the Revenue Law of that year, which prescribes: "Every person selling spirituous liquors shall pay a license tax semi-annually on the first days of January and July as follows: First, for selling in quantities of five gallons or less, fifty dollars for each six months; second, for selling in quantities of five gallons or more, one hundred dollars for each six months," etc. Section 103 makes it a misdemeanor to practice any trade or profession or use any franchise without having paid the tax and obtained a license as required, etc. It would seem that in view of the new classification of dealers in spirituous liquors, a sale of five gallons or less would be by small measure. This is the principle of construction adopted in State v. Shaw, 13 N. C., 198. We have said this much because we presume the appeal is taken for the purpose of having our opinion on the question. For the defect in the special verdict there must be a STATE v. Mehaffey. STATE v. MEHAFFEY. (Filed May 12, 1903.) 1. RAPE Instructions-Assault With Intent to Commit Rape-Intent. In the trial of an indictment for an assault with the intent to commit a rape a requested instruction that rape is a most detestable crime and that the heinousness of the offense may transport the jury and judge with so much indignation that they may be overhastily carried on to a conviction on insufficient evidence was properly refused. 2. INSTRUCTIONS-Trial Judge-Prayers for Instructions. The trial judge is not required to give instructions in the very words in which they are requested. 3. EVIDENCE-Sufficiency of Evidence-Rape-Assault with Intent to Commit Rape. There is sufficient evidence in this case to be submitted to the jury as to whether the accused made the assault with the intent to commit rape. 4. RAPE-Assault with Intent to Commit Rape-Intent. If at any time during an assault by a man on a woman he has an intent to ravish her, he is guilty of an assault with intent to commit a rape. 5. CONTINUANCES-Supreme Court-Appeal. An appeal in a criminal action will not be continued in the supreme court for the reason that a civil action for the same offense is pending in the superior court. DOUGLAS, J., dissenting. INDICTMENT against J. T. Mehaffey, heard by Judge B. F. Long and a jury, at February Term, 1903, of the Superior Court of CATAWBA County. From a verdict of guilty and judgment thereon, the defendant appealed. Robert D. Gilmer, Attorney-General, and W. C. Feimster, for the State. L. L. Witherspoon and W. B. Gaither, for the defendant. STATE v. MEHAFFEY CLARK, C. J. Indictment for assault with intent to commit rape. There are five exceptions, three of which are to the refusal to charge as prayed, and the other two are to the charge. The court gave the following instructions at the request of the defendant: 1. That in order to convict for an assault with intent to commit rape, the jury must be satisfied, not only that the prisoner intended to gratify his passions on the prosecutrix, but that he intended to do so at all events, and notwithstanding any resistance on her part. 2. It is not proof of guilt merely that the facts are consistent with guilt; they must be inconsistent with innocence. It is neither charity nor common sense nor law to infer the worst intent which the facts will admit of; the reverse is the rule of justice and law. If the facts will reasonably admit the inference of an attempt, which, though immoral, is not criminal, we are bound to infer that intent. 3. A conviction of an assault with intent to commit rape by force is not warranted by proof that the defendant against the will of the female upon whom the crime is charged to have been committed, indecently fondled her with intent to induce her thereby to submit to his embrace. It must appear that his intent was to accomplish his purpose by force and against her will and at all events, notwithstanding any resistance on her part. The defendant further requested the following instruction: "4. The crime which is charged in the bill that the defendant intended to commit is a most detestable crime; the heinousness of the offense may transport the jury and even the judge with so much indignation that they may be over-hastily carried on to a conviction on insufficient evidence. Blk Com., 215." The defendant excepts to the court not using this exact phraseology, but the above was not laid down by Mr. Justice Blackstone as substantive law nor as a consecrated |