EbeoR to review a judgment of the circuit court for Wash-hum county: Byrow B. Park, Judge.

The plaintiff in error (hereinafter called the defendant) was convicted in the Washburn county circuit court of an assault with intent to rape and was sentenced for a term of three years in the state prison. . .

The victim of the alleged assault was one Stella Bixby and the crime is alleged to have been committed on the 1st day of September, 1915. in the general store building of John Bixby, her husband, in the village of Trego. It appears from the record that John Bixby left his wife in charge of the store on that day while he went out of the village to look at a cranberry marsh. Stella Bixby testified that about 8 o’clock in the evening she extinguished all but one light in the store and proceeded to lock it up for the night; that the defendant at this time came into .the store; that she asked him if there was anything he wanted and he replied that he did not know as there was; that she took the keys out of the show case and came around to the outside of the counter and started for the outside door to lock it, when the defendant grabbed her and in the struggle backed her down the store to where there was a large flour bench on which flour was piled and tried to push her over onto the flour bench; that he made several attempts to get his hand under her clothes, while holding her tightly with the other hand and arm, and tore her dress in several places; that during the scuffle she grabbed an ax .handle and made repeated attempts to strike defendant with it; that she succeeded in getting released from his grip and struck him, whereupon the defendant fled toward the front door; that she pursued him and struck him again as he was going through the door. John Bixby, her-husband, had returned from the country in the meantime, and upon hearing a noise and the fall of dishes or pans in the store ran to the rear entrance, and as he stepped in the door he saw his wife strike some man with the ax handle as he was passing out of the front door. John Bixby testified that he could not swear that it was the defendant.

The defendant’s defense was an alibi. Several witnesses testified to the effect that defendant remained at his pool room until after the Chicago train passed through Trego at 8:19 p. m. and that he then locked his pool room and walked home on the south side of the street at the same time that Mr. and Mrs. William Bishop were walking in the same direction on the north side of the street. The witnesses went to defendant’s house and remained 'there until he went to bed at 10 o’clock. Vina Bishop and Lulu Sinclair, both daughters of the defendant, also testified that defendant came home a few minutes after the Chicago train had gone through Trego and remained at home until he retired at about 10 o’clock that night. The defendant did not take the stand in his own behalf.

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