Plaintiff in error was indicted for the offence of rape, and convicted of assault with an attempt to commit rape. He made a motion for a new trial on various *763grounds, as appear in the record, which was refused and he excepted.
The main grounds relied upon before this court for a reversal of the judgment of the court below were:
(1.) The misconduct of W. P. Bussey, sheriff of said county, for entering the room at night where the jurors, were lodged and under the control of the bailiff and having the door closed after him. How long he remained in the room the record does not disclose.
(2.) Because the court instructed the jury “that if they" believed the defendant was not guilty of the offence of rape, they might consider whether or not he,is guilty of' the offence of an assault with an intent to commit a rape-There being no evidence to justify the charge.”
(3.) Because the court allowed a witness (McWilliams) to be sworn and testify for the state after the argument to the jury had commenced.
(4.) On account of the misconduct of the jury in being •allowed, during the trial, intoxicating liquors and other refreshments, without the consent of the court.
1. It appears from the record that the trial of the defendant lasted several days, and at night the jury were removed from the court room to a house to be lodged and fed- during the recess of the court. That owing to the length of the trial the jury were put under charge of .special bailiffs, whose duty was to guard them from intrusion and prevent their separation, etc.; and during the night the sheriff of the county, W. P. Bussey, relieved one of the bailiffs from duty and assumed the duty of taking care of them. It does not appear from the evidence that his entrance into the lodging room of the jury was at anytime during their deliberations, but otherwise, after they had been removed from the jury room at the court house to their lodgings. The affidavit of W. P. Bussey establishes the fact that in his conduct in guarding and taking charge of the jury, “he strictly observed all the rules and regulations as prescribed by the special oath ad*764•ministered to bailiffs” on taking charge of a jury, and his -affidavit in this respect is fully sustained by several of the jurors who were upon the panel. It is well known to us that under the law and custom of the courts the supervision of juries empanelled and the bailiffs in attendance mpon them, is subject to the general supervision of the :sheriff. It is through him arrangements are made to feed and lodge them during criminal trials, and, as a consequence, much is left to his prudence and discretion, to see .that they are properly provided for and guarded from • outside influence. In doing this his presence in their lodging rooms for such a purpose when they are not engaged in their deliberations would not necessarily vitiate a verdict, still, intimate association with any of them, .such as occupying the same bed, is reprehensible and improper — would be a grave irregularity, and void a finding if the affidavits did not satisfy us that no improper •influence was exerted and no injury resulted to the defendant from this cause. If the affidavits of both the • officer and jury did not relieve his conduct from all suspicion of wrong to the state or defendant, we should be constrained to reverse the judgment and order a new trial.
2. As to the misconduct of the jury, as complained of in one of the grounds for new trial, we recognize the rule laid down by this court, “ that misconduct on the part of the jury while they have the case under consideration, from which injury might have resulted to the defendant, throws the burden upon the state to show affirmatively, that no such injury has resulted.” 45 Ga., 225. Yet in looking into the affidavits filed in support of this ground, while it appears from affidavits of some of the jury alone, that they at their own expense procured, through the bailiff in charge, and used during said trial, spirituous liquors, yet the affidavits of the same and other jurors establish the fact that .it was used in extreme moderation, and no juror was under the influence of the same to the ex.tent of .'impairing ,-ar affecting in the slightest degree his *765capacity as a juror. Moreover this fact of the use of re_ freshments in the jury room alone appears by the affida_ vits of the jurors themselves, and the rule is too well settled, that such evidence will not be received for the purpose of impeaching the verdict they have rendered. 45 Ga., 225. On these grounds of the motion as to the alleged misconduct of Bussey, the sheriff, and of the jury pending said trial we are satisfied from a careful inspection of the affidavits filed in support of the motion and in vindication of the officer and jury, that the state has shown affirmatively that no injury has resulted to this defendant for either of the causes complained of.
3. As to the complaint made to the charge of the court instructing the jury, “ That if they believed the defendant was not guilty of the offence of rape, they might consider whether or not he is guilty of the offence of assault with, intent to commit a rape,” we think there is sufficient evidence in the record to justify the charge as given and sus tain the verdict as rendered. It is true the testimony of the little girl, eleven years old, the victim of this outrage, sustains the accusation that the higher offence was committed, but when it is remembered her testimony was sought to be impeached by the defence by a number of witnesses by proving contradictory statements; when her age and size is taken into account, her physical condition at the time and immediately after the outrage, laboring as she was, under the influence of liquor which the attempted ravisher forced down her throat before the attack, there might be a grave doubt as to whether her testimony alone was sufficient as to the actual perpetration of the offence of rape. But unfortunately for the defendant, there were other witnesses who saw him in the act of making the attempt to commit this offence upon his helpless victim. These witnesses saw and testified to enough to satisfy any fair and impartial mind that he was seeking and attempting to perpetrate the offence. He had her upon the ground, was upon her person with her clothes up, and was *766making every effort in the midst of her choking and smothered cries for help, to commit this outrage. Whether he consummated his purpose these witnesses could not testify; that he attempted to do so no shadow of a doubt exists. The jury might well have deemed it wisest in favor of the defendant, to rest their verdict upon the undoubted testimony of these eye witnesses to this cruel wrong, rather than to believe, under the disadvantages of her surroundings at the time, the full testimony as to the consummation of the higher offence, and which was alone supported by the testimony of the victim. In the case cited by counsel for plaintiff in error Kelsey vs. State, 62 Ga., 558, there was but one witness to the offence charged, and that was the person upon whom the alleged outrage was perpetrated. She was a woman of mature age and swore positively to the offence of rape upon her person by the accused, and yet in the face of this testimony the jury found the accused guilty of an assault with intent to commit a rape. Well might such a verdict be set aside as being against the testimony and law. But in this case, as we have said, there was evidence before the jury sufficient to sustain either offence; it was for them to say to whom they would give credit. This was their province; and if in favor of the accused, they returned him only guilty of the lower grade, he of all others has the least cause of complaint.
4. As to the introduction of the witness for the state (McWilliams) after the argument commenced : his presence it appears was unknown to the state’s attorney when he closed for the state. It was in the discretion of the court to allow him to testify, and we will not control it.
Judgment affirmed.