Preisker v. People

This was an indictment, the first count of which charged a rape, and the second, an assault with intent to commit a rape. There was no proof under the first count, and that under the second was not very satisfactory. The court gave the following instruction for the people, to which the defendant excepted:

“ If the jury believe from the evidence that the defendant is not guilty, as charged in the first count of the indictment, but believe him guilty of an attempt, as charged in the second count, yom- verdict should be, 6 guilty as charged in the second count of the indictment, and fix the term…