dissenting. I cannot agree with the majority of the court that the judgment in this case should be affirmed. In Welborn v. State, 116 Ga. 522 (2) (42 S. E. 773), it was held: “Under an indictment charging a person with rape a verdict finding him guilty of assault with intent 'to commit rape is un*505warranted, and contrary to the evidence, when it appears that some of the witnesses testified to the full accomplishment of the crime charged, and none of them to an assault not included in the perpetration of the offense. An instruction that the jury might so find in this case was, under the evidence, erroneous.” In Brown v. State, 76 Ga. 625, 626, citing Morris v. State, 54 Ga. 441, the Supreme Court said: “ Penetratio corporis et emissio seminis was required by the old law to be proved, but slight penetration is sufficient.” The person assaulted in the case under consideration testified to “ the full accomplishment of the crime charged ” (both penetration and emission were shown), and no witness testified “to an assault not included in the perpetration of the-offense.” As the evidence showed that the crime charged was actually perpetrated, a conviction of an assault with intent to commit the crime was unwarranted (Penal Code, § 19), and the court erred in refusing a new trial.