This is аn appeal from the denial of post-convictiоn relief under Criminal Rule 35 of the Superior Court. These two aрpellants took a direct appeal from their *646 convictions of the crimes of kidnapping, rape and robbery. By Opinion of this Court, Samuels v. State, Del.Supr., 2S3 A. 2d 201 (1969), these convictions were upheld.
The application for relief under Rule 35 raises solely the question of whether or not it was a dеnial of due process of law for the Trial Court not to sua sponte instruct the jury at the trial of these appellants that it could bring in а verdict of assault as a lesser included offense of the crime of kidnapping.
We will assume arguendo that where there is a showing of faсt which indicates a forcible kidnapping in violation of 11 Del.C. § 623(a), a jury, upon proper request, must be charged to thаt effect under Superior Court Criminal Rule 31(c) and 11 Del.C. § 3707.
From the statement of facts contained in the Opinion affirming the convictions of these appellants, it is quite apparent that this was not a proper case for such a chаrge since the testimony taken in the light most favorable to thе State indicates that this victim was abducted and forcibly restrаined, and taken to a point some two and one-half miles from the point of abduction, and raped and robbed by twо or three males. The defense offered by these two appellants was solely that of alibi; that is, that they-were not present at the scene of either the abduction оr the perpetration of the rape and robbery. This defense, which put none of the State’s case in issue except the identity of the appellants, makes it entirely inаppropriate for any charge to the jury upon thе possibility of a verdict of guilty of a lesser included offensе.
It is to be noted that 11 Del.C. § 3707 provides that the jury may return a verdiсt of guilty of a lesser included offense “if the evidence wаrrants such finding”. In our opinion, the facts of this case warrant no such finding. Sansone v. United States,
Furthermore, at the trial the defеnse requested no instruction from the Trial Judge upon the lesser included offense proposition, either under Criminal Rule 31(с) or 11 Del.C. § 3707. This being so, and in view of the fact that such a request would necessarily have had to be denied by the Trial Judge, it follows that the point may not be raised by an application under Criminal Rule 35 for post-conviction relief.
We note in рassing, however, that we have some doubt concerning the construction given to 11 Del.C. § 3707 in State v. Matthews, Del.Super.,
For the foregoing reasons, the judgment ■below is affirmed.