The indictment in this case charged an as*289sault and battery with intent to commit rape, and this case is therefore distinguished from Owens v. State, 9 Ga. App. 441 (71 S. E. 680), relied on by counsel for the plaintiff in error; for in that case no battery was charged, and this court held that as no battery was charged in the indictment, the accused could not be convicted of an assault and battery.
Upon the trial the evidence adduced amply authorized a finding that an assault and battery had been committed by the accused, and did not demand a finding that it had been committed with intent to rape. The court therefore did not err in submitting to the jury the question whether the accused was guilty of an assault with intent to rape, or merely of an assault and battery. While it is true, as was stated by Judge Bussell in Gibson v. State, 10 Ga. App. 117 (72 S. E. 944), that “an assault with intent to induce consent to sexual intercourse on the part of a female child under the age of consent is not assault and battery, but assault with intent to rape,” it is also obviously true that if the assault and battery was made by the accused on the female child without the intent to induce her consent to sexual intercourse, but merely with intent to gratify his passion by rubbing his private parts upon some portion of her person, he would be guilty of an assault and battery, and not of an assault with intent to rape. These questions were properly submitted to the jury in the charge of the court, and the verdict of assault and battery was amply authorized by the evidence.
Judgment affirmed.
Luke, J., concurs. Bloodworth, J., dissents.