
    No. 541
    No. 18956
    Harold Grossweiler v. State of Ohio.
    Error to the Court of Appeals of Stark eounty.
    856. RAPE—Assault with intent to commit—Existence at time of attempt to commit, and to use force if necessary and of intent to abandon purpose upon refusal.
   MARSHALL, C. J.

Upon a trial upon an indictment for assault with intent to commit rape, where the general charge contains no instruction upon the question of the intent of the accused to use such degree of force as might be necessary to enable him to overcome the resistance of the prosecutrix and to accomplish his purpose, it is reversible error to refuse to give to the jury as a part of the general charge the following requests, or the substance thereof:

“I charge you as a matter of law that if you find in this case that the plaintiff in error made an approach towards the prosecuting witness with intent to procure her consent to have sexual intercourse with her, and if she refused, he abandoned the purpose, such act would not constitute an assault with intent to commit a rape;

“I charge you as a matter of law that to sustain a conviction upon an indictment for assault with intent to commit rape, the testimony must show not only that the accused had a purpose at the time of the assault to have sexual intercourse with the prosecuting witness, but also that he intended to use whatever degree of force might be necessary to enable him to overcome her resistance, and accomplish his purpose.”

Judgment reversed.

Jones, Matthias, Kinkade and Robinson. JJ., concur.  