¶1(dissenting).
¶2A close question is presented as to whether the evidence was sufficient to sustain the conviction for rape. By giving the defendant the fullest advantage of every doubt, I could agree that the evidence was insufficient to sustain a conviction for rape in the first degree. However, there is abundant proof to sustain a conviction for the in-*250eluded offense of assault with intent to commit rape. The attempt on the part of the defense to show such animosity on the part of the young child that she would fabricate the story which she related was unconvincing to me aS it evidently was to the jurors who heard it Another important factor strongly corroborative is that the wife of the defendant admitted on cross-examination that she told deputy sheriff Hart that she noticed the defendant’s underwear was bloodstained the night of the alleged assault and on further examination she repeated that she did notice that they were bloodstained and then she made this observation, “Well, I noticed it, and then I got to thinking it could have been me.” But she never intimated to the deputy sheriff at the time she told him of the bloodstained underwear that it might have been she who caused it. She further related that she took the deputy sheriff from her mother’s home' up to her house and searched for the underwear and could not find it. I am thoroughly convinced' the accused was unlawfully' molesting this young child. Because there is some doubt as to actual penetration, I would modify the judgment to the included offense of assault with intent to commit • rape, assess a reasonable punishment commensurate with the facts and affirm.