The appellant was convicted of the crime of an assault with intent to commit rape. All the errors but one assigned in the brief of appellant relate to rulings of the court on testimony offered upon the trial. None of the assignments in this regard appear to be well founded. Furthermore, the reporter’s transcript of the evidence was not filed in the court below, or certified to by the trial judge as correct, and, as we have repeatedly held, cannot, therefore, be made the basis of a reversal of ,the judgment, if the errors assigned had foundation.
It is urged that the trial court erred in charging the jury that if they were satisfied beyond a reasonable doubt that the *124appellant made an assault upon the prosecuting witness, but were not satisfied beyond a reasonable doubt of his felonious intent to commit an act of sexual intercourse with her in such manner as would constitute rape, the jury might find the appellant guilty of simple assault; the contention of the appellant being that the trial court should have instructed the jury that the appellant was guilty either of an assault with intent to commit rape or of an aggravated 'assault, but that he could not properly be convicted of a simple assault. Under the indictment as drawn, the appellant might properly have been found guilty of the crime of simple assault, if the evidence warranted it; and the contention of the appellant is without merit. Furthermore, the conviction being one of an assault with intent to commit rape, the charge of the trial court was manifestly in the appellant’s favor, and he cannot be heard to complain.
We find no reversible error on the face of the record, and the judgment of the district court is affirmed.
DOAN, J., not sitting.