People v. David

By the information, defendant was charged with an assault with intent to commit rape on a female above the age of 16 years. The evidence is not returned and but one question is presented upon the record, which arose as follows: In the course of his charge, the court inquired:

“The Court: Is attempted-rape a lesser offense than assault with intent to rape?

“Mr. Kent (the prosecutor): I don’t think so, your honor. I looked at the statute yesterday.

“The Court: Now, gentlemen of the jury, at common law rape was the carnal knowledge of a female over the age of 10 without consent and under the age of…