Egan

Appellant was charged by information with having committed an assault with intent to commit rape. At the conclusion of the evidence the court withdrew from the consideration of the jury the higher grade of crime charged and restricted the issue to “simple” assault by submitting to the jury but two forms of verdict, one reading: “Guilty of Misdemeanor, to-wit: simple assault”; and the other: “Not guilty.” The jury agreed upon and returned the former, and appellant was sentenced to imprisonment in the county jail, and thereafter took this appeal from the judgment of conviction.

Briefly stated, the facts established at the trial by the prosecution were as follows: The appellant and the prosecutrix, a Mrs. Ethel Schmilk, occupied different living apartments in the same building. Appellant had' entertained some friends at a party held in his apartment during the night, and the next morning about 9:30 o’clock, while still intoxicated, went to the apartment occupied by the prosecutrix, dressed only in his underclothes, knocked at the door, and when the prosecutrix, who was fully dressed, having just come in from shopping, opened the door appellant seized her and started to force her…