
    No. 692
    VOJTECT v. STATE
    Ohio Appeals, 9th District, Medina County
    No. 45.
    Decided June 26, 1923
    312. RAPE.
    Prosecution may proceed to trial (367) on charge of rape or assault with intent to commit rape, or both, and need not elect.
    Funk, Pardee and Washburn
    Attorneys — T. J. Long, for Vojtect; J. A. Weber, fox- State.
   PER CURIAM:

Epitomized Opinion

Vojtect was convicted in Medina Common Pleas of the crime of committing an assault with intent to rape the prosecuting witness who was a girl 18 years old. The first count of the indictment charged-Voj-tect with the offense of having carnal knowledge of the px-osecuting witness forcibly and against her will, and the second count of the indictment charged him with assault with intent to commit rape. Refusal of the trial court to x-equire the prosecuting attorney to elect upon which count he would proceed to trial is assigned as error by Vojtect. The latter also claimed that the written statement signed by him in the presence of police officers was improperly admitted in evidence. In affirming the judgment the Court of Appeals held:

1. There was no error in the refusal of the trial court to x-equire the prosecution to elect. By GC. 12421 assault with intent to commit a rape is an offense and by GC. 13692 one charged with the offense of rape may be found not guilty of that offense but guilty of an attempt to commit it. 90 OS. 196.

2. The written statenient signed by Vojtect was admissible in evidence and the jury was properly instructed as to the circumstances under which such evidence should be considexed and the weight to be given thereto.  