(Syllabus.)

Appeal and Error — Assault to Rape — Conviction Modified to Assault and Battery. Where an accused is convicted of an assault with intent to commit rape, and the evidence is insufficient to show that accused committed an assault and battery upon the person of the prosecutrix, with the intent to overcome her resistance and to accomplish an act of sexual intercourse, but is sufficient to show an assault and battery, the judgment will be modified to an assault and battery, and, as modified, the judgment affirmed.

Appeal from District Court, Cleveland County; Tom P. Pace, Judge.

Page 135

Garrison Mayberry was convicted of assault with intent to rape, and he appeals. Modified and affirmed.

Tom W. Cheatwood, for plaintiff in error.

Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

EDWARDS, P.J. The plaintiff in error, hereinafter called defendant, was convicted in the district court of Cleveland county of assault with intent to rape, and was sentenced to serve a term of two years in the state penitentiary.

Defendant was charged with an assault with intent to rape a young girl of the age of 6 years. He was at the time 18 years old. The evidence is insufficient to sustain the judgment. It wholly fails to show an assault with intent to have sexual intercourse. To the contrary, it shows an intent to take indecent liberties with the person.

Instruction No. 9 of the court invades the province of the jury, and is erroneous; but, from the view we take of the entire case, it is unnecessary to discuss it. The record makes out a case of aggravated assault and battery. Under authority of the case of Lebo v. State, 40 Okla. Cr. 116, 267 P. 288, the judgment is reduced from an assault with intent to rape to an assault and battery, and the judgment fixed at the maximum fine of $100 and 30 days in the county jail.

As so modified, the case is affirmed.

CHAPPELL, J., concurs.

DAVENPORT, J., absent, not participating.