
    The State v. Neis.
    1. Rape: instruction as to inferior offenses and reasonable doubt. On a trial for rape, where the court instructed the jury that they might find the defendant guilty not only of rape, but of any of the inferior offenses included under the indictment, (naming them.,) if the , evidence showed that he was guilty of either, held that it was prejudicial error not to instruct further that, if they had any reasonable doubt as to the degree of the offense of which he was guilty, they should convict only of the lesser offense. State v. Walters, 45 Iowa, 389, and State v. Jay, 57 Id., 164, followed.
    
      Appeal from Keokuk District Court.
    
    Wednesday, April 7.
    The defendant was convicted of tlie crime of rape, and sentenced to a term of imprisonment in tlie penitentiary, and from tbis judgment be appeals to this court.
    
      Mackey do Fonda, George D. Wooden and John J. Seer'ly for appellant.
    
      A. J. Baker, Attorney-general, for the State.
   Reed, T.

On the trial the district court instructed the jury, in effect, that if the evidence showed that the accused was guilty either of rape, or assault with intent to commit rape, or assault and battery, or simple assault, he might be convicted of such offense under the present indictment. It did not instruct them, however, that if they had any reasonable doubt as to tbe degree of the offense of which he is guilty they should convict only of the lower degree. The charge of the court in this respect is precisely like that given by the district court in State v. Jay, 57 Iowa, 164, and it was held by this court in that case that the omission to so instruct the jury was prejudicial eiTor. The same ruling, was also made in State v. Walters, 45 Iowa, 389.

Counsel for defendant take exceptions to some of the instructions given by the court. Without setting them out, we deem it sufficient to say that we think they are correct. It was also urged in argument that the verdict is not supported by the evidence; but in view of the fact that a new trial must be granted on the ground above pointed out, we think it would not be proper for us to discuss the evidence on this appeal.

Reversed.  