James H. Ward was convicted of the offense of rape and sentenced to ten years in prison. He appeals from that judgment. Held:
The appellant contends that the trial court erred in failing to charge the jury on the law of aggravated assault with intent to rape. He contends that this is a lesser included offense in the crime of rape and that it should have been given in charge.
Code Ann. 26-1302 provides: "A person commits aggravated assault when he assaults (a) with intent to murder, to rape or to rob, or (b) with a deadly weapon." Ga. L. 1968, pp. 1249, 1280.
Code Ann. 26-1303 provides: "A person may be convicted of an assault with intent to commit a crime if the crime intended was actually committed as a result of the assault but may not be convicted of both the assault and completed crime." Ga. L. 1968, pp. 1249, 1281.
Before the enactment of the new Criminal Code of 1968, of which Code Ann. 26-1303 is a part, conviction for an assault to commit a crime was prohibited where the crime was actually perpetrated. Jackson v. State, 225 Ga. 553
, 564 (170 SE2d 281
) and cits. This rule was changed by the enactment of Code Ann. 26-1303 which authorizes a conviction for an assault with intent to commit certain crimes even though the crimes were completed.
In Holcomb v. State, 230 Ga. 525 (198 SE2d 179)
this court considered a similar legal situation in which Code Ann. 26-1902 (Ga. L. 1968, pp. 1249, 1298; 1969, p. 810) provided that the offense of robbery by intimidation was a lesser included offense in the offense of armed robbery. In that case this court followed the case of Smith v. State, 228 Ga. 293
, 294 (185 SE2d 381
) where it was held that since the evidence did not demand a charge on the lesser included offense, a failure to charge on it was not error.
The evidence here did not show an aggravated assault with intent to rape. Therefore it was not error for the trial court to fail to charge on this crime.
Lewis R. Slaton, District Attorney, Isaac Jenrette, Carter Goode, Morris H. Rosenberg, Arthur K. Bolton, Attorney General, Courtney Wilder Stanton, David L. G. King, Jr., Assistant Attorneys General, for appellee.