Opinion
6 Div. 814.
February 21, 1961.
Appeal from the Circuit Court, Jefferson County, Wallace Gibson, J.
Robt. Esdale, Birmingham, for appellant.
MacDonald Gallion, Atty. Gen., for the State.
The indictment against this appellant charged him with carnally knowing a girl under the age of twelve years.
At his arraignment he entered a plea of not guilty.
At his trial he was permitted to withdraw his plea of not guilty interposed upon arraignment, waive a jury trial, and enter a plea of guilty to "assault with intent to ravish, as charged in said indictment * * *."
Accordingly he was, by the court, adjudged "guilty of assault with intent to ravish, as charged in the indictment," and sentenced to a term of five years in the penitentiary.
Assault with intent to rape is a separate and distinct offense from our statutory offense of carnal knowledge, and the constituent elements of the two offenses being different, assault with intent to rape cannot be considered as a lesser included offense of carnal knowledge. Smith v. State, 34 Ala. App. 45, 38 So.2d 341.
It follows therefore that the judgment entered cannot be supported when viewed in the light of the indictment charging this appellant with the offense of carnal knowledge.
Reversed and remanded.