Bailey v. State

1. Where one is on trial under an indictment charging the offense of rape, if the evidence fails to establish the offense charged, but does show beyond a reasonable doubt that the accused is guilty of the offense of assault with intent to rape, he may be convicted of the latter offense, and instructions appropriate thereto should be given in the charge to the jury.

2. But where two are jointly indicted for the offense of rape, and the evidence shows one of them to be guilty of the offense as principal in *414the first degree and the other guilty as principal in the second degree, because the…