The appellant was convicted of assault and battery with intent to commit the crime of rape upon a female child under the age of sixteen years. From the judgment he appeals. The only questions discussed in his brief arise upon the action of the court in overruling his motion for a new trial.
He says the verdict of the jury is not sustained by sufficient evidence and, under this specification, he asks us to reverse the judgment on the weight of the evidence. The rule in cases 1. of this kind is that only the evidence in support of the verdict of the jury can be considered, and if the evidence tending to *Page 610 support the verdict contains some evidence on every essential fact necessary to support the verdict, the verdict must be sustained, and this court cannot consider any evidence contradicting or tending to contradict the evidence in support of the verdict.
The evidence shows that the complaining witness was fifteen years old on September 15, 1923, and that the defendant assaulted her and had sexual intercourse with her on August 8, 1923. 2. It also appears from the evidence that the act was committed in Clark county, in the State of Indiana. It thus appears from the evidence that all the material facts constituting the offense are proved.
The appellant says that the prosecuting witness is unworthy of belief and her story connecting appellant with her downfall is false. These were questions for the jury in trying the case 3. and a verdict having been rendered by the jury, we are not at liberty to interfere. We cannot weigh the evidence. SeeDeal v. State (1895), 140 Ind. 354; Lee v. State (1901),156 Ind. 541; Williams v. State (1905), 165 Ind. 472, 2 L.R.A. (N.S.) 248; Lee v. State (1921), 191 Ind. 515.
In Chesterfield v. State (1923), 194 Ind. 282, it was held that a verdict of assault and battery with intent to commit a rape, in a prosecution for statutory rape, is 4, 5. sufficiently sustained upon the evidence of the prosecutrix of the commission of the crime and evidence that she was under sixteen years of age. There may be a conviction of assault and battery with intent to commit a felony although the felony is actually committed. Hamilton v. State (1871), 36 Ind. 280, 10 Am. Rep. 22; Polson v. State (1893),137 Ind. 519.
The appellant claims that the court erred in giving certain verbal instructions which he alleges were given although the appellant had requested that the instructions *Page 611 be given in writing. In the transcript appear certain 6. instructions given by the court at the request of the state and certain instructions tendered by the state and given; but the instructions tendered by appellant and given by the court are numbered in blank and no exceptions appear to be reserved to the giving of the instructions tendered by the state and given. It further appears that the instructions in this case were not brought into the record by a bill of exceptions. There is no bill of exceptions bringing into the record all of the instructions given in said case. It has been held that no question is presented as to the giving of instructions where it does not appear from the bill of exceptions containing such instructions whether or not it contains all the instructions given in the case. Hollan v. State (1916), 186 Ind. 374; Bennett v.State (1919), 188 Ind. 380.
When in a criminal case it is not affirmatively shown by the bill of exceptions that it contains all the instructions given by the court to the jury, this court must presume that such 7. bill of exceptions does not contain all instructions given. Cooper v. State (1889), 120 Ind. 377.
In such cases the presumption is that the substance of the instructions asked was embraced in the instructions given by the court which are not contained in the bill of exceptions, 8. and that if any instructions given by the court, and set out in the bill of exceptions, are erroneous they were corrected or withdrawn by other instructions given by the court and not set forth in the record. Pence v. Waugh (1893),135 Ind. 143; Musgrave v. State (1892), 133 Ind. 297.
In the case of Bennett v. State, supra, where it was claimed by appellant that § 2240 Burns 1914, was read as a part of the instructions in the case, after the appellant had requested that the instructions be given in *Page 612 writing, it was held that this court must presume, nothing in the record affirmatively appearing to the contrary, that the court withdrew the oral instructions claimed by appellant to have been given and substituted therefor written instructions, and that, when objection was made to the reading of § 2240, supra, the court copied such section into its instructions and reread it.
In the instant case, there being no bill of exceptions showing affirmatively that the court did not comply with the written request of the party that the instructions be given in 9-11. writing, we must presume that the trial court complied with the law in that particular. As a general rule, the appellate court, in the absence of a showing in the record to the contrary, will indulge all reasonable presumptions in favor of the correctness of the judgment and rulings of the trial court, and will presume that proceedings had were free from error. In order to overcome such presumption, error must be shown affirmatively by the record, and the burden of so showing is upon the party complaining of it. Bader v. State (1911),176 Ind. 268; Woodward v. State (1910), 174 Ind. 743.
In the absence of an affirmative showing of error, the presumption is that the ruling of the trial court is correct.Malone v. State (1913), 179 Ind. 184.
No reversible error being shown in the record, the judgment is affirmed.