“Upon the trial of one charged, with assault with intent to rape, where the undisputed evidence shows that if any offense was committed, it was either assault with intent to rape or assault and battery, a verdict finding the defendant guilty of a mere assault is contrary to the law and the evidence.” Fronebarger v. State, 27 Ga. App. 607 (109 S. E. 512), and cases cited. The foregoing being controlling, it is not necessary to discuss the grounds of the amendment to the motion for a new trial.
Judgment reversed.
Broyles, C. J., concurs. Bloodworth, J., absent on account of illness. Francis B. Hunter, for plaintiff in error. John C. Hollingsworth, solicitor-general, contra.