(concurring).
I concur in the result reached by the majority but would respectfully point out that it was error, albeit harmless error, for the trial judge not to charge the lesser included offense of assault and battery. For a detailed discussion of my reasons see the dissent in Black v. State, 1 Tenn.Cr.App. 373, 443 S.W.2d 523, the reasoning in which was since adopted by this Court in the unpublished opinion of Kelly and Hans v. State, Knoxville, January 1972 (No. 19 Cocke County).
Not only would the facts proved in this case support a conviction for assault and battery (which is the test for determining whether or not the charge should be given), the jury actually convicted the defendants of an aggravated assault and battery.
However, in view of the overwhelming evidence of guilt on the rape charge, the error is rendered harmless beyond a reasonable doubt. See Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758.