Baldwin

Defendant was charged with rape, committed upon a minor under the age of consent. He was convicted of assault with intent to commit rape, and appeals from the judgment and an order denying him a new trial.

1. The prosecuting witness was a young girl between eight and nine. years of age; her story as to the circumstances of the offense was, briefly, that in returning from school in the country district where she lived, in company with a little brother and another child companion, she took a short cut through defendant’s premises; that the defendant, who was in his milkhouse at the time, stopped her, and induced her to go into the building by giving her some pretty shells, and there committed the act while she “was standing up .... standing in the middle of the floor,” and the defendant was “ kneeling down.”

The defendant, a married man, denied positively committing the act charged, or any other improper act toward the child; his statement was, that he was standing at the well when the little girl came past, crying as if in pain or distress; that he spoke kindly to her and gave her a drink of water and some shells that were *248 there, when she immediately passed on toward her…