delivered the opinion of the court.

Félix Almodóvar was convicted of aggravated assault and battery upon an information charging assault to commit rape.

The evidence failed to show that the prosecuting witness was not the wife of defendant, or that defendant was an adult male.

Appellant submits that the district court erred in overruling a motion for nonsuit, and in charging the jury as hereinafter set forth.

The court did not err in overruling the motion for non-suit for the reason that the jury might have found defendant guilty of a simple assault and battery.

In response to an inquiry from the bench as to whether or not any further instructions were desired, counsel for defendant requested an instruction in regard to aggravated and simple assault and battery. While the judge was charging the jury in compliance with this request, counsel asked for a more specific statement explanatory of the statutory definition of an aggravated assault when committed by an *737adult male on the person of a female. In this connection after repeating the statutory definition, the judge told the jury that the assault, in order to constitute an aggravated assault, must have been committed by an adult male, and that this fact must be established by the evidence. Here counsel again interrupted the court with a further suggestion that the evidence must show that defendant was over twenty-one years of age, and reminded the court that although the defendant might appear to the court and to the jury to be a man of sixty years, yet the evidence adduced at the trial must show that he was over twenty-one. The judge, apparently as a part of the colloquy with counsel, said that the fact could be shown by expert witnesses, and was about to add something about circumstantial evidence, when he was again interrupted by counsel with a protest to the effect that the fact must be established by witnesses put upon the stand by the district attorney and not by observation of the jury. The judge said that of course he would instruct the jury that an adult male is a man of more than twenty-one years, to which counsel added “and that there must be proof of this.” To this the district attorney objected on the ground that counsel was invading the province of the court, to which the judge assented and added that the jury had the evidence before them and could decide upon that evidence whether or not the element in question had been established.

In this we find no error.

Because of the technical insufficiency of the evidence, the judgment appealed from must be reversed and the case will be remanded for a new trial.