Cates v. Commonwealth

The accused, the plaintiff in error, was indicted and tried for rape. On the first trial he was found guilty of an attempt to commit the offense charged. Upon his motion, the verdict of the jury was set aside and a new trial granted him. Upon that trial, over his objection, he was tried for rape and found guilty. He moved in arrest of judgment and for a new trial, but both motions were overruled and judgment entered upon that verdict. To that judgment this writ of error was awarded.

The action-of the court in trying the accused for rape, instead of trying him for an attempt to commit that…