"The argument now is that the accused may be a sexual pervert (he was so characterized by one witness for the defense) who did not either intend or accomplish an act of intercourse. The patent answer to this suggestion is that the proof still does not show the possibility of an assault with intent to rape; for one can intend to commit rape only if he intends to have sexual intercourse with his victim."
Thus, in the Needham case, the words were "for one can intend to commit rape only if he intends to have sexual intercourse with his victim." (Italics our own.) The quoted language from the Needham case constitutes judicial recognition that intent has been recognized as being involved in the offense of rape. So, if "other acts of a similar nature" are admissible where intent is involved, then I fail to see why the attack on Mrs. Austin was not admissible in the case at bar : it was certainly another act of a similar nature to show the intent with which the appellant attacked Mrs. Morman, for which act he was being tried.
Further, I point out that when the defendant was being tried for rape in the case at bar, be was also being tried for assault with intent to rape. At defendant's request, the Court gave Instruction No. 4, which reads:
"The crime of assault with intent to rape is embraced in the information charging the crime of rape; whoever shall feloniously, wilfully, and with malice aforethought assault any person with intent to commit a rape shall on conviction thereof be imprisoned in the penitentiary not less than three nor more than twenty-one years."
Now the majority opinion says in its category 8, (supra), that in cases of assault with intent to commit a specific crime ". . . proof of similar offenses is independently relevant." Appellant asked the Court to instruct the Jury on the crime of assault with intent to rape. How can the majority say, in the face of appellant's requested Instruction which was given, that evidence of other similar offenses was not admissible on the issue of intent? I submit that the majority opinion shows that
