Appellant was indicted for rape and convicted of assault with intent to commit rape. Relying upon the first Green case 1 he says the trial judge erred in giving an instruction on the lesser offense. But Green is inapplicable for two reasons: (1) There was no request for the instruction in that case; here a request was made by defense counsel. (2) In that case this court held that the record reflected no evidence which would establish the elements of the lesser offense without proving the greater. No such question arises in the present case. The legal definition of the greater offense clearly includes the lesser. The evidence here tended to prove a series of events, part of which, if believed, would establish the lesser offense but not the greater. Thus the instruction was proper. We find no error.
Affirmed.
Notes
. Green v. United States,