
185 S.E.2d 189 (1971)
280 N.C. 74
STATE of North Carolina
v.
Floyd Lindsey HUDSON.
No. 99.
Supreme Court of North Carolina.
December 15, 1971.
*191 Atty. Gen. Robert Morgan, Asst. Atty. Gen. Isham B. Hudson, Jr., for the State.
Johnson, Davis & Horton, Concord, for defendant appellant.
SHARP, Justice.
Defendant brings forward only one assignment of error, the failure of the court to allow his motion for nonsuit. He asserts that all the evidence tends to show that the purpose of his assaults upon Clemmie was not to rape her but to engage in perverted and unnatural sex acts.
Considering the grievous injuries which defendant inflicted upon Clemmieespecially the head injurywe may doubt whether she was able to remember and recount all that defendant did to her. Yet, upon the assumption that she told all, we hold her testimony sufficient to withstand the motion for nonsuit.
The requisites of the crime with which defendant is charged have been stated many times: To convict a defendant on the charge of an assault with an intent to commit rape the State must prove not only an assault but that the defendant intended to gratify his passion on the person of the woman, at all events and notwithstanding any resistance on her part. It is not necessary that defendant retain that intent throughout the assault; if he, at any time during the assault, had an intent to gratify his passion upon the woman, notwithstanding any resistance on her part, the defendant would be guilty of the offense. "Intent is an attitude or emotion of the mind and is seldom, if ever, susceptible of proof by direct evidence, it must ordinarily be proven by circumstantial evidence, i.e., by facts and circumstances from which it may be inferred." State v. Gammons, 260 N.C. 753, 756, 133 S.E.2d 649, 651. To convict a defendant of an assault with intent to commit rape "an actual physical attempt forcibly to have carnal knowledge need not be shown." 75 C.J.S. Rape § 77, p. 557 (1952).
Although Clemmie did not testify that defendant ever attempted coition, his attack upon her was indisputably sexually motivated, and we think the jury could reasonably infer from his treatment of her that defendant intended at some time during his continuous assaults to rape Clemmie if he could, notwithstanding any resistance on her part; that she, a girl of fourteen, confronted by a mature man, armed with a knife with which he threatened to kill her, resisted all she could. State v. Mabry, 269 N.C. 293, 152 S.E.2d 112.
In State v. Mehaffey, 132 N.C. 1062, 44 S.E. 107, the defendant, aged fifty-four, appealed a conviction of assault with the intent to rape a fourteen-year-old girl whom he had employed to work on his farm. The State's evidence tended to show that in the course of an indecent assault upon her, the defendant twice inserted his finger into her person but then, for some unknown reasonperhaps because of her screamshe finally desisted. In sustaining the conviction, Chief Justice Clark said: "Whether he desisted for that reason, or because at his age he could not accomplish his purpose after so vigorous an opposition, or because he was physically unable to overcome her opposition, or because he did not intend to have intercourse with her by force, was a matter for the jury alone, and was properly left to them in connection with all the other evidence in the case. It is true he desistedthat is to say, he did not succeed in having sexual intercourse *192 with the girl. * * * [b]ut his failure is not conclusive of the absence of intent * * *." (Citations omitted.) Id. at 1065, 44 S.E. at 108.
"Impossibility of having carnal knowledge of the girl does not, as a matter of law, prevent a man from feloniously so trying." Huggins v. State, 41 Ala.App. 548, 551, 142 So.2d 915, 918.
Defendant was living with his common-law wife who, although absent from his trailer earlier in the evening, was there at 2:00 a.m. when the officers went for him. It may be inferred from this illicit arrangement and his anger when Clemmie bled on the sheets, that defendant was not impotent.
We hold that the evidence, when viewed in the light most favorable to the State, was sufficient to be submitted to the jury upon the issue of defendant's guilt of the crime charged.
Although defendant has not assigned it as error, and the Attorney General has ignored it, we must, ex mero motu, take notice of a fatal defect appearing upon the face of the record. Between the conclusion of the evidence and the judge's charge to the jury, a juror became ill and had to be excused. Whereupon, defendant and his trial counsel, Mr. Bedford W. Black (now deceased) "waived trial by twelve." They agreed that the eleven remaining jurors might pass upon defendant's guilt or innocence and that defendant would be bound by their verdict. The trial then proceeded with eleven jurors who "returned a verdict of guilty as charged."
It is a fundamental principle of the common law, declared in Magna Charta and incorporated in our Declaration of Rights, that "[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court." N.C.Const., art. I, § 24 (1971). See N.C.Const., art. I, § 13 (1868); State v. Moss, 47 N.C. 66 (1854); State v. Stewart, 89 N.C. 563 (1883). In this State, the only exception to the rule that "nothing can be a conviction but the verdict of a jury" (State v. Alexander, 76 N.C. 231, 233) is the constitutional authority granted the General Assembly to provide for the initial trial of misdemeanors in inferior courts without a jury, with trial de novo by a jury upon appeal. N.C.Const., art. I, § 24 (1971).
It is elementary that the jury provided by law for the trial of indictments is composed of twelve persons; a less number is not a jury. It is equally rudimentary that a trial by jury in a criminal action cannot be waived by the accused in the Superior Court as long as his plea remains "not guilty." State v. Stewart, supra; State v. Scruggs, 115 N.C. 805, 20 S.E. 720 (1894); State v. Rogers, 162 N.C. 656, 78 S.E. 293 (1913); State v. Rouse, 194 N.C. 318, 139 S.E. 433 (1927); State v. Camby, 209 N.C. 50, 182 S.E. 715 (1935); State v. Hill, 209 N.C. 53, 182 S.E. 716 (1935); State v. Norman, 276 N.C. 75, 170 S.E.2d 923 (1969). As noted in State v. Norman, supra, both the Judicial Council and the Constitutional Study Commission recommended to the 1969 General Assembly that the Constitution be modified so as to empower that body, if it so desired, to give a defendant the option of having his guilt passed upon by a judge rather than a jury. The General Assembly rejected the proposal; so it remains the law of North Carolina that no person can be finally convicted of any crime except by the unanimous consent of twelve jurors who have been duly impaneled to try his case.
In State v. Rogers, supra, during the defendant's trial for murder a juror became ill. The State was willing to call in another juror or to make a mistrial or to get an entirely new panel. Counsel for the defendant, however, insisted on proceeding with eleven jurors. Thereupon, in open court it was agreed by the defendant, his counsel, and the solicitor for the State that the trial would proceed with eleven jurors. The defendant expressly waived his right to *193 have a full panel and agreed that the clerk should make no record of the fact that one of the jury had been excused by consent. Upon his conviction of manslaughter, however, the defendant moved in arrest of judgment because he had not been convicted by a jury of twelve. The trial judge ruled that the defendant had estopped himself to assign this error and denied the motion. Upon appeal, Justice Brown, speaking for the Court, said: "The defendant may plead guilty, or nolo contendere, or autrefois convict, and of course the impaneling of a jury is unnecessary; but when he pleads not guilty in cases, such as this, where a trial by jury is guaranteed by the organic law, he must be tried by a jury of twelve men, and he cannot waive it." Id. 162 N.C. at 660, 78 S.E. at 294. A new trial was ordered.
In State v. Berry, 190 N.C. 363, 130 S.E. 12, the defendant appealed his conviction of an assault with a deadly weapon. This Court said: "It appearing by the record that the defendant was tried and convicted by 10 men, the conviction was improper, and no judgment could be rendered. For the reason given, there must be a new trial." Id. at 364, 130 S.E. at 12.
In State v. Rouse, supra, a juror was taken very ill during the trial. By agreement of defendant, who was charged with a felony, his counsel and the solicitor, the juror was excused and the case concluded with eleven jurors. Upon conviction defendant appealed. In holding that defendant was not precluded by his agreement from assigning as error that the judgment against him was based upon the verdict of eleven jurors, Justice Connor said: "The decisions of this court in support of the assignment of error are unanimous. * * The verdict is a nullity. The defendant is entitled to a new trial." Id. 194 N.C. at 318-319, 139 S.E. at 433.
The verdict in this cause is likewise a nullity despite defendant's failure to assign his conviction by eleven jurors as error. If imprisoned under the sentence imposed defendant would be entitled to his release upon a writ of habeas corpusfor which he would, no doubt, apply in due time. There must be a
New Trial.
