
    No. 339
    SANBORN v. STATE
    Ohio Court of Appeals, Eighth Dist.
    No. 4615.
    March 26, 1923
    his opinion has not been published except in Abstract.
    VARIANCE between indictment and proof — Defendant not discharged, but remanded for new trial.
    Vickery, P. J., Sullivan and Levine, JJ.
    Error to Cuyahoga Common Pleas
    Judgment Reversed
    i Attorneys — Doerfler & Kornhauser, for Sanborn; É. C. Stanton, Contra.
   PER CURIAM.

Epitomized Opinion

Defendant was convicted of assault with intent to ommit a rape, under an indictment charging him vith rape with the consent of the girl, she being mder the age of sixteen and he being over the age if eighteen years. No motion for a new trial was nade, but a motion to discharge the prisoner took' >lace, and it is urged that the verdict finds him ;uilty of an offense that he is not charged with in he indictment, and, therefore, having been found lot guilty of all other offenses in the indictment, íe should be discharged.

Apparently it was the error of the clerk in writing, ‘Assault with intent to commit' a rape,” instead of, ‘jin an attempt to commit a rape,” which is a separate and distinct offense in our statute, but it does fot necessarily follow that the accused must be discharged. We think that the case must be reversed rind be remanded to the Common Pleas for a new trial, under the authority of Fox v. State, 34 OS. É77, where the exact question, in its practical effect, was before the court.  