
    No. 792
    SCHWAB v. STATE
    Ohio Appeals, 3rd District, Hancock County
    No. 146.
    Decided June 22. 1923
    367. TRIALS.
    Granting a continuance is discretionary with trial court — True bill is returnable by extra session of Grand Jury.
    312. RAPE.
    “Force” necessary to overcome “resistance” not “will” of accusing witness is necessary to constitute assault.
    Attorneys — W. H. Kinder, Axline & Pendleton, for Schwab; H F. Burket, C A. Blackford, for State.
   HUGHES, J.

Epitomized Opinion

Schwab was indicted for assault with intent to commit rape. On the trial day a motion for continuance was filed, which was overruled by the court. At the same time, a hearing was had on the defendant’s plea in abatement, which was to the effect that the grand jury that was called for that term of court had discharged its duties and been dismissed, and was therefore called in specially for the investigation of defendant’s case, and hence the' ind'etment presented by this grand jury was not a true indictment. The court found for the State on this p’ea in abatement, and trial was then had on the merits, which resulted in a verdict of guilty. In reversing the judgment of Judge Duncan, the Court of Appeals held:

1. As the granting of a motion for a continuance is within the discretion of the trial court, this reviewing court is -unable to find that this discretion was abused.

2. That the indictment returned against the defendant was a true indictment even though the grand jury was specially called for the investigation after it had been dismissed for the -term.

3. As the trial court instructed the jury that the assault must have been with the intenion of using such force as might be necessary to overcome the “will” of the accusing witness and accomplish his purpose 'instead of such force as might be necessary to overcome witnesses’ “resistance,” the court committed prejudicial error.  