Payne v. State

Mobley, Chief Justice.

Thomas Robert Payne, Jr., was tried on three counts of rape. He was convicted of one offense, and sentenced to two years in prison. He appeals from his conviction and sentence and the denial of his motion for new trial.

1. The first error enumerated is that the court illegally failed to instruct the jury on the lesser included offense of attempted rape.

Code Ann. § 26-1303 (Ga. L. 1968, pp. 1249,1281) provides that: "A person may be convicted on an assault with intent to commit a crime if the crime intended was actually committed as a result of the assault. . .” While this…