¶1— This was an indictment of Joseph Richie, charging him with the commission of a rape upon the body of Martha F. Dean.
¶2He was convicted of an assault and battery, and fined sixty dollars.
¶3*122Every material point arising in this case, except two, is decided in the case of Richard Richie v. The State, 58 Ind. 355.
¶4The points in this case not decided in that are these.The appellant alleges in his motion for a new trial, that counsel for the State, in the present case, in his argument, commented upon the verdict of guilty in the case of Richard Richie. This is matter falling within the first provision of the statute relative to the granting of new trials, viz.: “ Irregularity in the proceedings of the court, jury or prevailing party, or any order of court or abuse of discretion, by which the party was prevented from having a fair trial.” 2 R. S. 1876, p. 179.
¶5The court overruled the motion for a new trial, perhaps^ because it did not concede the truth of the statement in the motion. But, if that concession was made, still this court can not say the court below erred in overruling the motion, so far as this cause for a new trial was concerned. No objection was made at the time to the course of counsel in the argument; the circumstances are not disclosed; counsel for the State may have been replying to comments on'the verdict by counsel for the defence.
¶6We can not say that there was “ an abuse of discretion,”1 preventing a fair trial.
¶7The second point. The persons who committed the of-fences upon Martha P. Dean first visited the house of Mrs. Kenton. She testified, without objection, to the boisterous conduct of the persons while there, and to her preparation to leave and retire to a neighbor’s, for fear of them. After this -testimony had- been given, counsel asked her why she left her house that evening. Defendant objected to the question. She answered, as she had previously stated-, that it was; on-account of fear of the men.
¶8If any error of law is here shown, it was a harmless one. No ground for a ne\y trial appears.
¶9The judgment is affirmed, with costs.