The plaintiff in error was found guilty of an assault with intent to commit rape, and the court sentenced him to State prison for a term of years.
Complaint is made that in stating the offense to tlie jury the judge was not sufficiently precise. After explaining the crime of rape, and that of an assault with intent to commit it, he added: “If you find from the evidence that the respondent did, on the occasion in question, take hold of the complainant and use force to overcome her; that she resisted; that the intent of the respondent was to overcome her resistance, and to gratify his passions upon her notwithstanding her resistance, and that it was against her -will; if you find these facts to exist and beyond reasonable doubt, then your verdict should be guilty.” Construing this instruction with the rest of the charge, to which no exception has been taken, and comparing it with the evidence, and we not only find it accurate (Strang v. People 24 Mich. 1; Don Moran v. People 25 Mich. 356; People v. Lynch 29 Mich. 274) but appropriate to the circumstances as given by witnesses. The jury could not have been misled.
The refusal of the court to grant a new trial presents no question. It is true the affidavits are incorporated in the bill of exceptions, but there is no finding upon them of the facts they may be claimed to show, or anything equivalent to such a finding. Moreover, the application for the new trial was founded on matters pertaining to the discretion of the court and not on the ground of absolute legal right. Hill v. People 16 Mich. 351.
There is no error and the judgment is affirmed.
The other Justices concurred.