In his motion for rehearing appellant renews his contention that the verdict is contrary to the law and the evidence, in that if the State's version of the transaction had been accepted the jury would have been bound to find appellant guilty of rape; whereas, if appellant's version had been accepted there was not sufficient evidence to sustain the conviction for assault with intent to rape. We are unable to agree with this contention. Art. 694, C. C. P., provides:
"In a prosecution for an offense including lower offenses, the jury may find the defendant not guilty of the higher offense, but guilty of any lower offense included."
Subdivision 9 of Art. 753, C. C. P., provides:
"A verdict is not contrary to the law and evidence, within *Page 450 the meaning of this provision, where the defendant is found guilty of an offense of inferior grade to, but of the same nature as, the offense proved."
The offense of rape includes an assault with intent to rape. In Carter v. State, 51 S.W.2d 316, we held that a conviction for aggravated assault would be sustained under an indictment charging rape, though the evidence established the offense of rape. In Gatlin v. State, 217 S.W. 698, and Campbell v. State,144 S.W. 966, it was held that a conviction of an inferior grade of homicide would be sustained notwithstanding the evidence showed that a greater offense had been committed. See also Jabalie v. State, 81 S.W.2d 509.
We are still of the opinion that the trial court was warranted in overruling the appellant's application for a continuance.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.