#### Commonwealth *v.*Jaynes, Appellant.

*512Argued October 26, 1939.

Before Keller, P. J., Cunningham, Baldrige, Stadteeld, Parker, Rhodes, and Hirt, JJ.

*513December 13, 1939:

*J. R. Smiley*with him *Wade K. Newell,*for appellant.

*Samuel J. Feigus,*with him *Frank M. Lardin,*Assistant District Attorneys, and *James A. Reilly,*District Attorney, for appellee.

Opinion by

Keller, P. J.,

The appellant was indicted, tried and convicted of having committed an assault and battery upon a young woman, with intent, forcibly and against her will, to have unlawful carnal knowledge of her, in other words, assault and battery *with intent to commit rape.*The applicable statute is section 93 of the Penal Code of 1860 (Act of March 31,1860, P. L. 382,18 PS sec. 2263) which makes such offense a misdemeanor. He was sentenced to the extreme imprisonment permitted by the statute.

The trial judge in his charge to the jury said: “The indictment-charges a felony and you will have nothing to say about the costs.” This was clearly erroneous, as a reference to the Penal Code would have disclosed, and settled the controversy on the point between the assistant district attorney and counsel for the defendant. In his opinion discharging the rule for a new trial, the trial judge, speaking for the court in banc, said: “The attention of the trial judge was not called to this matter of costs at the close of the charge and his attention was not called to the inadvertent statement that the case in question involved a felony.” The recollection of the trial judge is not supported by the record, which shows the following:

> “Mr. Smiley [attorney for defendant]: Now, March 7,1939, before the jury retires and in the presence of the Court, the defendant excepts to the charge of the Court for the following reasons:

> “The Court erred in instructing the jury that the case was a felony and they had nothing to do with the disposition of the costs.

> *514“The Court erred in instructing the jury that the verdict would be guilty or not guilty.

> “The Court erred in failing to instruct the jury that they could return a verdict under the evidence of simple assault and battery or of simple assault.”

While a technical error, we would agree with the court below, that by itself, it did the defendant no harm, if the evidence clearly showed an intent on the part of the defendant to commit rape on the young woman — and the statute refers to the rape of a woman, *forcibly and against her will,*as provided for in section 91 of the Penal Code, before the amendment of May 19, 1887, P. L. 128. But while we are not prepared to say that there was no evidence to submit to the jury on this point, a careful review of the testimony in the case leaves us in considerable doubt whether the defendant ever intended to go to the extreme of forcibly committing a rape upon the young woman, if he was unable to gain her consent to sexual relations with him; and this, in connection with certain other errors in the charge, leads us to the conclusion that a new trial should be granted.

We agree with the court below that defendant’s conduct was most reprehensible and should be severely punished, but if there was not present in his mind an intention to accomplish his purpose *by force,*if he was unable to obtain it otherwise, the punishment should be inflicted for simple assault and battery rather than assault and battery with intent to commit rape.

The evidence is convincing that against the wishes and consent of the young woman he took unwarranted liberties with her person while driving his automobile into the country, and also when there. This constituted an assault and battery, and, in the circumstances of the case, which need not be detailed, would have justified the extreme penalty for simple assault and battery. It was not necessary, in order to secure a conviction of *515assault and battery, *that he*intended to *injure*ber. The least intentional violence, in ever so small a degree, is sufficient to make out tbe offense: *Com. v. Yancer,*125 Pa. Superior Ct. 352, 355, 189 A. 684.

Tbe evidence is also convincing that defendant’s purpose in taking tbe young woman out to tbe country, instead of driving ber to tbe Lafayette Hotel in Union-town, where sbe wanted to go, was to have sexual relations with ber; but to our mind it falls short of clearly establishing that, if be could not gain ber consent by cajolement and offers of money, be would proceed to extremes and forcibly commit rape upon ber. Tbe fact that after being with ber for forty-five minutes, in a place where ber outcry, if sbe bad made one, could hardly be beard, be desisted from bis approaches and drove ber back to, or near, tbe Lafayette Hotel, leads us to believe that an intent to commit rape upon her, by force, was not formed in bis mind.

In bis charge to tbe jury — near its close — tbe trial judge said: “We have already said, I think, that a person’s intentions can best be gathered from a person’s conduct, and we say to you that tbe conduct of this defendant, from tbe beginning, would justify an inference on your part that be bad tbe intention of having sexual relations with this girl. Tbe question for you to consider seriously and to determine under your duty is whether be used force which, if used separately from tbe intention, *would amount to assault and battery*in bis effort to carry out tbe intention that be undoubtedly bad.” (Italics ours).

Tbe jury might well have concluded from this excerpt delivered to them just before they retired to their room, that if the- defendant’s intention was to have sexual relations with tbe young woman — as to which there was little doubt — , and if be used tbe least force, which apart, from such intention, would amount to assault and battery — of which there was likewise little doubt— *516it was their duty to convict him of assault and battery with intent to ravish.

It amounted, in effect, to a direction to find the defendant guilty as he stood indicted, if he used the least force, or took any unwarranted liberty, in his endeavors to induce the young woman to have sexual relations with him.

But the offense with which he was charged in the indictment was not assault and battery with intent to have sexual relations with the young woman, but assault and battery with intent, *forcibly and against her*will, to have carnal knowledge of her. To warrant a verdict of guilty as he stood indicted, his conduct must have been such as to justify the inference that he intended forcibly and against the will of the young woman to have unlawful carnal knowledge of her.

Taking the least unwarranted liberty with the young woman’s person constituted an assault and battery, and was also some evidence of a desire or intention on his part to have sexual relations with her; but in order to secure a conviction of assault and battery with intent to commit rape, it was necessary for the jury to find from all the evidence an intention on the part of the defendant actually to commit rape upon her forcibly, if he could not secure her consent by other means.

If correct instructions had been given, the jury might have found the defendant guilty only of simple assault and battery. See *Com. v. Smith,*115 Pa. Superior Ct. 151, 152, 175 A. 177.

The judgment is reversed and a new trial awarded.