charging the jury:
Gentlemen of the jury: — The prisoner at the bar, Walter Honey, is charged in this indictment with having committed, on the thirtieth day of January of the present year, an assault upon the prosecuting witness, Minnie Coward, with the intent her the said Minnie Coward to ravish and carnally know.
The indictment is based upon a statute of this state, which provides: “That if any person shall, with violence, assault any female, with intent to commit rape, such person shall be deemed guilty of felony,” etc.
[1] The charge embraces, therefore, as you observe, not only an assault, but also an intent to commit rape.
[2] An assault is an unlawful attempt by force and violence to do injury to the person of another, the person making the attempt having the present ability to commit such injury.
You may find the prisoner guilty of an assault only, if the • evidence warrants you in so doing.
[3] In order to find the prisoner guilty in manner and form as he stands indicted, that is, guilty of an assault with intent to
[4] It is necessary, therefore, for us to tell you briefly what constitutes the crime of rape. Rape has been defined by the court to be the carnal knowledge of a woman, above the age of ten years, by force and against her will.
If you believe from the testimony that the prisoner not only committed the assault alleged in the indictment, but that he intended at the time to commit the crime of rape, you should find him guilty in manner and form as he stands indicted.
In this case you may find any one of three verdicts, as the evidence shall warrant and justify, viz.:
If you are satisfied beyond a reasonable doubt from the evidence in the case that the prisoner committed an assault upon the prosecuting witness with intent to commit rape, as alleged in the indictment, your verdict should be guilty in manner and form as he stands indicted.
If you are not satisfied that the prisoner committed the assault with intent to commit rape, but nevertheless believe beyond a reasonable doubt that he did commit an assault upon the prosecuting witness, your verdict should be not guilty in manner and form as he stands indicted, but guilty of an assault only. But if you are not satisfied beyond a reasonable doubt that the prisoner committed an assault upon the prosecuting witness with intent to commit rape, or even that he committed an assault upon her, your verdict should be not guilty.
In order to convict the prisoner it is necessary that you shall believe the alleged assault was committed by force and against the will of the prosecuting witness. If it was done with her consent, he would not be guilty of any offense.
[5] If after carefully considering all the evidence in the case, you entertain a reasonable doubt of the guilt of the prisoner, that doubt inures to his benefit and your verdict should be not guilty. But we say to you that a reasonable doubt does not mean a vague, fanciful or mere possible doubt, but a real substantial doubt,
Verdict, guilty of assault.