Chavez

The defendant was convicted of the crime of rape upon Rebecca A. Foss, a widow, aged fifty-seven years. He appeals from the judgment and from an order denying his motion for a new trial.

The court refused to give the jury an instruction, at the request of the defendant, to the effect that under the information charging the crime of rape the defendant might be convicted of an assault with intent to commit rape. The ruling of the court in this regard rested upon its opinion that there was no evidence to support an instruction of that character. This is the only assignment of error demanding any special consideration, and the proper disposition of it depends upon the *408 nature of the evidence placed before the jury at the trial. For while it may be conceded that an assault with intent to commit rape, as well as a simple assault, are included in the offense here charged, still if there was no evidence tending to reduce the offense from that charged in the information, the court was entirely justified in refusing to give the instruction requested. This principle has been repeatedly recognized and approved by this court in the trial of defendants charged with murder, where…