Green

On a charge of assault with intent to commit rape upon a girl under the age of consent, the defendant was convicted of simple assault and sentenced to forty-five days in the county jail. He appeals from the judgment and from an order denying him a new trial.

At the request of defendant the jury were instructed that they could find the defendant guilty of simple assault.

The evidence consisted principally of the testimony of the prosecutrix, setting forth facts which, if fully believe, should have satisfied the jury that the defendant was guilty of the very crime charged in the information, and the testimony of defendant in denial of the more material parts of the testimony of the prosecutrix. It is clear that if the defendant had been convicted of the greater crime of assault with intent to commit rape, such verdict would on appeal have been treated as supported by the evidence. It is also clear that the evidence of the attempt to ravish contained in the record showed that such attempt was instituted with a violent assault and battery, and involved a continuous violent assault from its beginning up to the time the attempt was abandoned, on the approach of the mother of the girl.…