The record here shows that a boy around 10 or 12 years of age and brother to the prosecutrix was in the rear seat of the car when an attempt was made to rape his sister by the plaintiff in error. The physical facts surrounding the attempted rape are as I see them, inconsistent with the guilt of the defendant; the plaintiff in error tried to get the consent of the prosecutrix to sexual intercourse and his persistence irritated her. The entire escapade, as shown by the record, is commonly practiced by the younger generation. The jury failed to follow the testimony and I think a new trial should be awarded. The Legislature in enacting the law under which the plaintiff in error was tried and convicted did not intend to send the men to the State prison for the mere solicitation of sexual intercourse as shown here. Such an act would be contrary to the general welfare. I cannot consent to the affirmance of this judgment. *Page 28
