Bailey

The defendant was charged with the crime of rape, alleged to have been committed by willfully, feloniously, etc., having sexual intercourse with a female child under the age of sixteen years, and was found “guilty as charged in the information.” He appeals from the judgment and from an order denying his motion for a new trial.

Among the points made by appellant for a reversal there is really only one which calls for special notice, and it arises out of that part of the charge of the court to the jury which deals with the form of their verdict and the offenses of which he might be convicted under the information. In this part of the charge the court told the jury, substantially, that because the word “assault” was not in the information the defendant could not be convicted of an assault with intent to commit rape, and then proceeds to the following: “Therefore, under this information there will be but two verdicts, either of which you can render. The first is, ‘We, the jury, find the defendant guilty, as charged in the information’; the second is, ‘We, the jury, find the defendant not guilty. ’ ” We need not consider that part of the charge in which the jury were told that there…