Fish, J.
1. Under an indictment for assault with intent to rape there may be a verdict for a simple assault, if the evidence so authorizes. 2. It is discretionary with the presiding judge whether he will reopen a case after both sides have closed and argument has begun. 3. The evidence warranted the verdict.
Judgment affirmed.
All the Justices concurring, except Lumpkin, P. J.¿ absent.
Indictment for an assault with intent to rape. Before Judge Evans. Washington superior court. October 17, 1902. J. A. Robson, for plaintiff in error.
B. T. Rawlings, solicitor-general, contra.