Daniel v. Maxwell

The primary question raised by this action is whether an accused indicted for forcible rape may be found guilty of assault with intent to rape under such indictment. The determination of this issue rests upon whether assault with *208attempt to rape is a lesser included offense of rape. If so, petitioner was properly convicted.

Section 2945.74, Revised Code, provides in part:

“The jury may find the defendant not guilty of the offense charged, but guilty of an attempt to commit it if such attempt is an offense at law. When the indictment or information charges an offense, including different…