Miller v. State

DAVIDSON, Presiding Judge.

Appellant was charged in the ordinary stereotyped form with assault to commit rape, upon a girl under fifteen years of age. The court submitted to the jury the law of attempt to commit rape. This was error. An indictment charging assault with intent to commit rape will not sustain a conviction for an attempt to rape. This question has been before the court in a great number of cases which will be found collated in Branch’s Ann. P. C., pp. 1012-1013. The jury, however, acquitted appellant of assault to rape or attempt to rape. These issues passed out of the case.

The…