
    17559.
    SILLS v. THE STATE.
    A conviction of assault and battery, under an indictment charging rape, was authorized by the evidence; and the court did not err in charging the jury on assault and battery.
    Criminal Law, 16 C. J. p. 1023, n. 77, 79.
    Indictment and Information, 31 C. J. p. 457, n. 72, 73; p. 854, n. 38; p. 856, n. 61; p. 859, n. 12 New.
    Rape, 33 Cyc. p. 1453, n. 12; p. 1503, n. 20.
    Decided November 9, 1926.
    Assault and battery; from Bulloch superior court — Judge Strange. June 25, 1926.
    
      Anderson & Jones, for plaintiff in error.
    
      John G. Hollingsworth, solicitor-general, contra.
   Luke, J.

The accused was charged with rape and convicted of assault and battery. The only two special grounds of his motion for a new trial allege error because the court charged on assault and battery. Part, of the testimony in the case, if believed by the jury, would authorize a conviction of this offense. “It is conceded that a verdict of assault, or of assault and battery, or of assault with intent to commit a rape, may be founded upon an indictment for rape. An assault or assault and battery is necessarily involved in every case of rape. Speer v. State, 60 Ga. 381, 382; Goldin v. State, 104 Ga. 549, 551 (30 S. E. 749); Watson v. State, 116 Ga. 607 (43 S. E. 32, 21 L. R. A. (N. S.) 1). Where a charge of graver character includes a minor offense, if the evidence will justify a verdict finding the defendant guilty of the minor offense, it is the duty of the judge to instruct the jury as to the principles of law applicable thereto. The graver offense must either necessarily include the minor offense, or the indictment must charge the essential elements of the minor offense. To state the rule as strongly as possible, the jury should in all cases be instructed that the defendant may be convicted of the lesser offense necessarily involved in the .graver offense, where the evidence submitted, under any view thereof, will authorize conviction of the lesser grade.” Moore v. State, 151 Ga. 662, 663 (108 S. E. 47).

The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.  