State v. Henderson

Stukes, Justice.

Appellant was tried upon an indictment which was reduced on motion of the Solicitor to two counts: first, rape; and second, assault and battery of a high and aggravated nature. The jury convicted him upon the second count and he has appealed.

The first question is stated in the brief as follows:

“1. Where a jury acquits a defendant of rape, but finds him guilty of assault and battery of a high and aggravated nature, can this verdict be sustained as a matter of law when both the prosecutrix and the defendant admitted the penetration, the former contending it was accomplished with…