Thomas J. McDonald v. Louie L. Wainwright

ALDRICH, Senior Circuit Judge:

This is an appeal from the denial of a petition for habeas corpus. Thomas McDonald, hereinafter defendant, was charged in the Florida state court with breaking and entering with intent to commit rape, and, by separate indictment, with assault with intent to commit rape, and rape. The first charge was postponed, and the remaining two tried together. At this trial the court charged the jury that it could convict defendant for either of the two specified offenses, or for attempted rape, as a lesser included offense. The jury found him not guilty.

The evidence at the…