TOWNSEND, J.
1. Where, as here, a defendant is charged with the offense of assault with intent to rape, and is convicted of assault and battery, and where the court, in connection with the major offense, defines assault, and thereafter instructs the jury that, if they should not be convinced beyond a reasonable doubt that the defendant committed the assault as described in the indictment, with the intent to rape, it would then be their duty to see whether he was guilty...
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