This is an indictment for assault with intent to commit rape which was tried to a jury in the superior court and resulted in a verdict of guilty. The case is here on the defendant’s bill of exceptions to the denial of his motions for a mistrial and a new trial and to numerous other rulings of the trial justice during the trial. However, only his exception to the denial of his motion for a mistrial on the ground of the trial justice’s alleged disqualification to pass on the motion for a new trial is before us.

The court as constituted at the time the case was decided being evenly divided as to the merits of the defendant’s exception, the verdict stands and the case is remitted to the superior court for further proceedings.