This cause is here on a writ of error prosecuted by defendant. Defendant under an indictment charging him with the crime of assault with intent to commit rape was, under instruction of the court permitting it to do so, found guilty by a jury of assault and battery. The errors assigned by him present the one question, *Page 484 namely, is the crime of assault and battery necessarily included within the crime of assault with intent to commit rape? (See R.L. 1935, § 5533.) The public prosecutor now moves to dismiss the appeal on the ground "that there is no transcript of the evidence, nor an official transcript of the remarks of the trial court and of counsel at the time that the instructions which are made a basis of this appeal were objected to, among the papers filed."

The record before us is sufficient for the consideration by the appellate court of the single question of law above referred to and this being so the motion to dismiss is denied.