State v. Western

(dissenting). — I am unable to agree with the majority’s construction of and conclusion with reference to the dis trict court’s instructions known in the opinion as Nos. 4 and 5. Those instructions, so far as material, are:

“You are instructed that, before the defendant can be convicted of the crime of assault with intent to commit rape, the State must prove beyond a reasonable doubt the following essentials :

“1. That the defendant made an assault upon Madge Jones, a female child under the age of 16 years.

‘ ‘ 2. That such assault was made by him with the intent to have or attempt to have [the…