delivered the opinion of the Court:
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 of his confinement in the penitentiary not less than one nor more than fourteen years.’ ”
The jury found a verdict of guilty, and the plaintiff in error now assigns the giving of this instruction as error. It was clearly so. It required the jury to find the defendant guilty under the second count, if they believed him guilty of an attempt, as charged in that count. But that count does, not charge the defendant with an attempt to do anything, but with the actual commission of an assault, having in view a certain specific object, as the motive for the assault. The language of the instruction is altogether too vague, and may well have misled the jury. The judgment is reversed and the cause remanded.
Judgment reversed.