dissenting. Where a charge of an offense of graver character includes (without additional averment) a minor offense, it is the duty of the trial judge to instruct the jury upon the iaw applicable to the lesser offense, where the evidence, under any view thereof, will authorize a conviction of the lesser offense. Moore v. State, 151 Ga. 648 (5) (supra). An indictment which alleges that the defendant did “unlawfully and with force and- arms have carnal knowledge of ” a named *863person, “ a female, forcibly and against her will, contrary to the laws,” etc., charges the offense of rape and includes the minor offenses of assault with intent to commit a rape, assault and battery, and assault. Johnson v. State, 14 Ga. 55; Speer v. State, 60 Ga. 381; Moore v. State, 151 Ga. 648, 662 (supra), and cit. An indictment for assault with intent to commit a rape may charge that offense in language that will not include a battery (Goldin v. State, 104 Ga. 549, 30 S. E. 749), but this does not conflict with the principle stated above. If all of the evidence proves the completed offense of rape as charged in the indictment, such evidence would not support a verdict for the lesser grades of offense. Penal Code (1910), § 19; Kelsey v. State, 62 Ga. 558; Johnson v. State, 73 Ga. 107 (2); Harris v. State, 101 Ga. 530; Welborn v. State, 116 Ga. 522; Canida v. State, 130 Ga. 15; Moore v. State, supra. But where, on the trial of a defendant under an indictment of the character mentioned above, the evidence of the injured female, though contradictory, was sufficient to establish the technical offense of rape, and there was testimony delivered by other persons who were present at the time it was contended by the alleged injured female that the crime was committed, which did not support the charge of rape, but was sufficient to support a verdict for an assault with an intent to commit a rape, or a verdict for assault and battery, or a verdict for a bare assault, it was erroneous for the judge while instructing the jury to omit, without request, to charge the law applicable to these minor grades of offense. In this case the error in omitting to charge the law relating to the minor grades of offense was sufficient to require a new trial.
No. 3818. November 27, 1923. J. B. Hoyl, for plaintiff in error. George M. Napier, attorney-general, ~W. EI. Flournoy, solicitor-general, Seward M. Smith, assistant attorney-general, and O. F. McLaughlin, contra.