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Broyles, C. J. Under an indictment charging rape, the accused cannot lawfully be convicted of an assault with intent to rape, if the evidence affirmatively shows that the offense charged was committed. Penal Code (1910), § 19; Welborn v. State, 116 Ga. 522 (2) (42 S. E. 773). However, in the instant case the evidence did not demand a finding that the defendant had committed rape, but authorized the verdict of assault with intent to rape. The court, therefore, did not err in overruling the motion for a new trial.
Judgment affirmed.
Luke, J., concurs. Bloodworth, J., dissents.
Document Info
Docket Number: 13326
Citation Numbers: 28 Ga. App. 504, 111 S.E. 924, 1922 Ga. App. LEXIS 644
Judges: Bloodworth, Broyles
Filed Date: 4/14/1922
Precedential Status: Precedential
Modified Date: 10/19/2024