dissenting. I think the accused was well convicted, by the verdict returned, of an assault with intent to • commit a rape, and, therefore, do not concur in the reversal of the judgment. I especially dissent from the order remanding the cause for a new trial on the charge of rape, as upon that charge the accused was in terms acquitted. The pi’inciple of Beheimer’s case, 20 Ohio St. 572, does not apply. There the accused moved to vacate the verdict, and for a new trial, and his motion was granted. Here the accused, without his consent, and against his protest, and without any waiver of the rights secured to him by the constitution, is required to submit to another jury the question of his guilt or innocence upon a charge, of which he has been,. by a legally constituted jury, pronounced not guilty.. This seems to me a plain infraction of the constitution.