
    Bib Sharpe, plaintiff in error, vs. The State of Georgia, defendant in error.
    (Atlanta,
    January Term, 1873.)
    1. Criminal Law — Charge of Court. — It is not error for the Court, in a charge to the jury, to state hypothetical illustrations of a legal principle, unless it be done in such manner as would imply that they were intended to be used as facts which had been proven by the evidence.
    2. Same — New Trial- — In this case the jury were clearly authorized to believe that the defendant entered the house through a window, into a room where a girl of thirteen or fourteen years of age was sleeping, and got into her bed and under the cover, whilst she was asleep, and aroused her by touching her person, and that his purpose was to have sexual intercourse with her, and they having found, under a legal charge by the Court, that from his reckless and daring conduct, his intent was to use violence in the accomplishment of his purpose, this Court will not say the Court below erred in refusing a new trial on the ground that the verdict was contrary to law or the evidence.
    Criminal law. Change of Court. New trial. Before Judge Harvey. Floyd Superior Court. July Term, 1872.
    Bib Sharpe was placed on trial for the offense of an assault with intent to rape, alleged to have been committed upon the *person of Georgia A. Watters, on March 26th, 1872. Fie pleaded not guilty.
    The following evidence was introduced:
    Georgia A. Watters, sworn: I felt something at my back; thought it was my aunt; asked who it was, but no answer was made. Put my hand on the head of the person. It was a negro’s head, the hair being kinky. I screamed to my uncle that Bib Sharpe was in the room. He ran out before any one could come in. This occurred at night, in this county, during the month of last March. The moon was shining. There were three windows to the room. It was light enough to see the person. It was the defendant. Could tell him by his walk. Suppose he went out of the window; thought he went under the table, and so told my uncle. The motion at my back aroused me from sleep; it was about eleven o’clock at night. Prints of mud were under the clothing, from which I knew he had got under; there was a peculiarity. about the defendant’s walk by which I could recognize him; he walked with his shoulders stooped or shrugged; none of the windows were up when my uncle came in.
    Anne Watters, sworn: Georgia woke me bj'- screaming that Bib Sharpe was in the room; I aroused Mr. Watters, and told him that some one was in the room where Georgia was; he replied that she was dreaming; she was in the habit of walking in her sleep. He went in and looked; she said that defendant was under the table; he could not find any one, and told her that she was dreaming, to lie down and go to sleep; I was in the habit of fastening the windows at night; took a light, went into the room and found the side windows buttoned down; the button on the end window was turned, the curtain drawn under one side of the sash and a flax sack under the other side, the sash being down on them; suppose this was done to prevent noise in dropping the sash; went back and told Mr. Watters that somebody had been in the room; he went out to defendant’s room; this was about ten minutes after the alarm had been given; the window with the sack in it was the nearest to defendant’s room; the moon was *not shining on that window at all but was shining brightly through the side ■yvindows; the bed was at the opposite end of the room from that window; the defendant had to pass through the moon-light which came in through the side windows; when I had finished my domestic matters on that evening, the defendant asked me if I wanted any pine brought in; I told him to have the pine in the kitchen, but subsequently he brought it into my room, and went out through Georgia’s room; this was unusual conduct on his part; I fastened the windows before he brought in the pine, but did not examine them afterwards until the alarm; this occurred on Wednesday night, the 26th of last March. Upon examining the bed on the next morning, I discovered that the sheets were soiled with dry dirt; there were prints at the foot and head of the bed, as if soiled with dirty clothes.
    Wieeiam Watters sworn: About ten minutes after the alarm I went to the defendant’s room to see if he was there; he was in his room, covered up head and ears; the fire was burning unusually bright for that time of night; it appeared as if it had been lately stirred. The next morning I avoided giving him any grounds to suppose that I suspected him, and asked him where he had been on the preceding night? He replied, that he had been to Uncle Dan’s, about a mile off, and returned about day-break.' When I went into Georgia’s room, after the alarm, she told me that there was a negro in the room, and that it was nobody, else but Sharpe, and pointed where she said he was; I examined and found no one; said to her that she was dreaming; she insisted that she was not, that she had seen him and felt him. I had been to Rome on the day before, and had brought back the sack full of potatoes; it was emptied on that evening and the sack left lying on the table. On the next morning I examined the bed; the covering was pulled down from the foot-board, and round, dirty prints were on the sheets as though he had got on his knees on the bed; saw where he had slid out of the bed at the side; his clothes were usually ve-y dirty. Georgia is in her thirteenth or fourteenth year. The door between my room *and Georgia’s was open. The defendant has a strange mind, and sometimes acts so as to make a person think he is a fool; my wife asked him once why he acted so, that he would make people think he was a fool? he replied, that he was not half as big a fool as people thought he was. There was a table right against the window, a little lower than the sill'; he would have had to go over it in going out; it was upon this table that the sack was left. My little son, four years of age, was sleeping in the same bed with Georgia; he was in the part of the bed between her and the wall.
    The jury found the defendant guilty. A motion was made for a new trial, upon the following grounds:
    1st. Because the verdict is contrary to the evidence and the law.
    2d. Because the verdict of the júry is contrary to the following charge of the Court: “Rape is a crime which involves the idea
    of force, and must be perpetrated forcibly and against the will. An assault with intent to rape cannot be committed without an open assault is proved. An assault is an attempt to commit a violent injury on the person of another, and in this case, to authorize the jury to convict there must have been an assault, a commencement of the perpetration of the crime.”
    3d. Because the court erred in the following charge: “That the seizing by the arm, or an attempt to turn the young lady, or party over, would be an assault,” there being no evidence to authorize such a charge.
    The motion was overruled, and the defendant excepted upon each of the grounds aforesaid.
    Underwood & Rowell; Forsyth & Reese, for plaintiff in error.
    Ivey F. Thompson, Solicitor General, by Hamilton Yancey, for the State.
    
      
      Criminal Law — Charge of Court. — See the principal case cited in Ency. Dig. Ga. Rep., vol. 7, p. 570.
    
    
      
      Same — New Trial. — See the principal case cited in Dorsey v. State, 108 Ga. 481, 34 S. E. Rep. 135. Also in Ency. Dig. Ga. Rep., vol. 9, p. 639.
    
   *Trippe, Judge.

The Court, in the illustrations that were given to the jury, certainly intended them to be taken only as hypothetical instances explanatory of a legal principle, and not as reciting any -facts as proven on the trial. We doubt not the jury so understood them, and could not have been misled by them. Had they been stated as being proven by the evidence, the question would have been different. But, under the strictest rule, some freedom must be allowed a judge to explain and illustrate to a jury his meaning in a charge on legal questions, especially where such questions can thus be simplified and be made more-fully comprehended by those who are to make an application of them to the facts of the case under investigation.

The main question in this case is, did the facts proven justify the verdict? The jury were authorized to find, and doubtless did so find, that a man — a negro man — in the' night time, entered a room, by raising a window, where a girl thirteen or fourteen years of age was sleeping, and got into bed with her, under the bed clothes, and on his movements waking her, and she making an outcry, which was responded to from another room where her uncle slept, the negro fled out of the window. The jury found the defendant guilty. Shall their verdict be set aside ? They have determined the facts and the intention; shall we say that intention was not as the jury found it? Here was an adventurer, guilty of a daring, reckless act, which, it is natural to suppose, no one would attempt, unless it was from a desperate purpose to accomplish the end intended at all hazards. The recklessness of what he did do illustrates the recklessness of his intention. A party acting as this defendant, has no right to complain where both the law and an outraged family spare his life. It is a principle found in many decisions, and in the elementary books, that a person may be guilty of this offense, though the intent afterwards subsides and he desists from his purpose, especially if he so desists from fright at being detected, or from inability to accomplish *his purpose: 35 Ala., 380; Bishop on Crim. Raw, sec. 664, and note 4.

Judgment affirmed.  