I. Assault: Included in change of rape. An assault with intent to commit rape is included in the charge of rape, and a conviction may be had of the former' offence under an indictment for the latter. Mansf. Dig., sec. 2288; Davis v. State, 45 Ark., 464; 1 Bish. Cr. Law, sec. 809.
2. Rape: Trial for: Conviction of assault. 2. It is conceded that the testimony would sustain a -diet for rape. That being true, there can be no question of its sufficiency to sustain the verdict for assau-lt with intent to commit the offence. If it be conceded that the testimony would logically demand a verdict of guilty of rape or nothing, it does not follow that a conviction of an attempt to rape should be avoided here. The jury had the power to return the verdict and the offence is less than the crime charged. The case is not distinguishable in that respect from Fagg’s case, 50 Ark,, 506; Green v. State, 38 Ark., 319; Allen v. State, 37 Ark., 435.
3. Same: Charge made under threats: Instruction. 3. The court refused to charge the jury as follows: the jury believe from the evidence that Nora Shaver, the woman upon whom the assault is charged to have been made, the charge against the defendant as mentioned in the indictment under duress or threats of and from her husband, you will acquit.” There was evidence tending to show that the husband threatened to abandon the woman unless she made complaint of her treatment to the magistrate. This could not have affected the question of defendant’s guilt or innocence, The most that could be claimed was, that under the influence of the threat, the wife may have made a false charge of rape, and so affected her credibility. Affirm.
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