By the court, Johnson, J.
I am of the opinion, that the county judge, at the close of the people’s evidence on the trial, ought to have ruled and held as requested by the-prisoner’s counsel, that there was not sufficient evidence of force and violence to go to the jury, or to authorize a conviction for the crime of assault with the intent to commit a rape; and also, that he ought to have so instructed the jury. If the evidence was clearly insufficient to warrant or justify a conviction for that offense, the exception to the refusal so to rule or charge is well taken, the same as though it had been a civil action (2 R. S., 736, § 21). The judge,, in his charge, instructed the jury that in order to convict they must find from the evidence, that “the prisoner assaulted this girl with the intent to have sexual intercourse with her, against her will, and against all resistance she-might offer.” This is the true rule of law, undoubtedly, in. *188cases of this kind. But, I think, the case is entirely bare of any and all evidence to prove such criminal intent. Taking the testimony of the girl herself, in its fullest length and breadth, it is not clear, beyond doubt, that even a simple assault and battery was committed. It is quite certain, however, that had the prisoner had sexual intercourse with her at the time, with no more resistance on her part than appears from her testimony, he could not justly have been convicted of a rape, within the rule established in The People agt. Morrison, (1 Park Cr. R. 625,) and The People agt. Abbott, (18 Wend., 192,) at most the testimony would have made but “a mixed case,” and her quasi assent would have been presumed from such mere passive resistance. Her younger sisters were, confessedly, in an adjacent room in the house, and within call and hearing of any outcry, and conversation was more or less being carried on between them and the prisoner and complainant, during the whole time. The prisoner, undoubtedly took grossly improper liberties, with the complainant, whether with or without ¡her consent. But, granting that what was done, wTas done' wholly against her will and consent, what evidence is there that hedntended to go farther and have sexual intercourse with her “ against all the resistance she might offer.” He made no verbal threat of that kind, and according to her testimony did not unbutton, or place himself in a condition in which it would be possible for him to do such an act. ■The evidence, at most, raises but suspicion, or conjecture, that such might have been his intention. But that is not •enough. In view of all the facts and circumstances, the balance of probabilities, even, seem greatly the other way. Where the indisputable evidence is such as to raise only a suspicion or conjecture, it is clearly insufficient, and the ■court should so charge the jury. The counsel for the people—while he does not, in terms, dispute the proposition that it was erroneous to submit the question of the intent to ravish to the jury, upon the evidence—insists that no *189injury was thereby done to the prisoner, because the jury found him guilty of a simple assault and battery only. But the question is, whether it did prejudice, or had a tendency to prejudice, the prisoner in his defence to the entire charge against him. The charge laid in the indictment included a simple assault and battery as well as the higher crime. The prisoner denied all unlawful force and violence. The refusal of the judge to charge as requested, and on the contrary, submitting the question of the felonious intent to the jury, were in substance and legal effect a charge and direction to the jury, that they would be justified in finding such felonious intent from the evidence. No one can fail to see that this was calculated to prejudice the prisoner’s defense on the other branch of the case, and the presumption must be that it did so. Indeed, such a ruling from the court could scarcely result otherwise than in a conviction for the lesser offense if not the greater, at the hands of the jury. Had the cake turned merely on the question whether a conviction for a simple assault and battery was warranted by the evidence, we should probably not have felt at liberty to interfere. But upon that question the prisoner was obliged to go to the jury with the weight and cloud of this ruling against him, and we cannot fail to see that the ruling may, and indeed that it necessarily must, have operated to his prejudice with the jury. The error was, therefore, material and the judgment must be reversed, and a new trial ordered at the court of sessions of Jefferson county.