Oyamada

Upon the original submission of this case, an opinion was prepared by Judge DIETRICFI, but after his death the case was restored to the calendar for reargument. Upon such reargument and upon full consideration, the opinion of Judge DIETRICH, which follows, is adopted as the opinion of the court:

I dissent. The evidence, in my opinion, justified the jury in concluding that there had been such penetration as completed the rape, and consequently the defendant was properly convicted of the lesser offense of an assault to commit rape, as that was the offense charged in the indictment. A detailed discussion of the evidence in a dissenting opinion would serve no useful purpose, and I consequently refrain therefrom.