Todd v. State

Appellant was indicted in the district court of Eastland county for the offense of assault with intent to rape and upon his trial was convicted of an aggravated assault, and his punishment fixed at six months in the county jail.

The indictment contains two counts, each charging assault with intent to commit rape by force and without the consent of the assaulted party. We find in the record no exceptions to the charge of the court. There were three special charges asked each of which referred to an attempt to present some phase of the law of assault to rape, but, appellant being convicted only of aggravated assault, we deem it not necessary to discuss the refusal of said special charges. Complaints of the charge of the court presented for the first time in motion for new trial will not be considered by us. We do not deem the motion to quash the indictment to present any serious objection to the validity of that document. The only question before us is that of the sufficiency of the testimony. On its face the case is very similar to that of Hand v. State, 227 S.W. Rep., 1944. It is disclosed that appellant took the prosecutrix out into the country and there tried, by putting his arms around her and under her skirt, to have carnal knowledge of her. She testified that she hit him and fought him when he tried to do this, and that he fought her, too, and that he told her that she might as well submit to him, that he was going to do what he wanted to. Prosecutrix finally jumped out of the car and made her escape from him. The facts testified to by the young woman were not disputed. The only contention as to the sufficiency of the testimony is that appellant, being a minor, can not be convicted of an aggravated assault. We held contrary to this contention in Hand v. State, supra. See said case and the authorities cited also in Ward v. State, 151 S.W. ___.

The judgment will be affirmed.

Affirmed.

ON REHEARING.