Appellant was prosecuted on the charge that at a time named, in Huntington county, in the State of Indiana, he made a felonious assault upon W.H., a female child only fourteen years old, 1. and committed a rape of her person. The jury returned a verdict finding that he was guilty of assault and battery with intent to commit rape, and that he *Page 414 was twenty-three years old. Overruling his motion for a new trial is assigned as error. By several specifications in the motion, appellant challenges the sufficiency of the evidence to sustain the verdict, particularly as to the venue of the action. The prosecuting witness testified circumstantially and specifically that, while driving a Ford delivery truck with appellant and another young man and a girl, the truck was stopped beside the road, and that appellant had sexual intercourse with her in the back part of the car; and the other girl of the party testified to the same facts. But there was no direct evidence that this took place in Huntington county, and, on cross-examination, the prosecuting witness said that they had driven across the line into Wabash county before the act was consummated. However, on her examination in chief, she had testified that she and the other girl climbed into the delivery truck at the bridge across the Wabash river, half a mile north of the town of Andrews, in Huntington county, Indiana, that the only seat in the truck was the one for the driver, up in front; that the truck was enclosed at the top, sides and rear, with doors at the rear end which were fastened from the outside; that she and appellant climbed in through the rear doors, which were then shut and fastened by the other young man, who sat in the front seat with a girl companion and drove the car; that it was driven north, and before they reached the interurban station, appellant began fondling the witness, and, as they drove along, he continued to have his arm around her and took hold of her leg with his hand; that this occurred in Huntington county, Indiana; that after driving north some distance, they drove west to a church, which she testified was in Huntington county, and then south half a mile, where they stopped by the road until after dark, when the intercourse took place in the back part of the *Page 415 truck. Upon these facts, they would still be in Huntington county at the time the rape was consummated. But she testified that they afterward drove to the bridge at Belden, half a mile west of the county line, and there crossed the river, and then drove east to Andrews. And, on cross-examination, she said that after they turned south from the church, they again turned west, and drove across into Wabash county, and that the place where the car was stopped was in Wabash county, and that she did not "have any actual intercourse" with appellant while in Huntington county. The other girl also traced their route south from the church, and then west half a mile, where she said they stopped, the road that runs south from the church being, as we understand, much more than half a mile east of the county line. But she testified that they drove south to the Belden bridge, and, on cross-examination, said that after driving south from the church, "when they got down there, they were in Wabash county," and that the road where they stopped runs north and south, and not east and west. Some of this testimony would fix the place where intercourse took place as being in Huntington county. But assuming that the crime charged was not consummated until after the parties had crossed the county line, the evidence was ample to sustain the inference which the jury drew that, while they were still in Huntington county, appellant unlawfully touched the girl in a rude and insolent manner, with intent to ravish her. His act of hugging her and taking hold of her in the way he did, followed as it was by his other acts, supports that inference. Murphy v. State (1889), 120 Ind. 115, 22 N.E. 106; Hanes v. State (1900),155 Ind. 112, 57 N.E. 704; Gordon v. State (1912), 177 Ind. 689, 98 N.E. 627; Underhill v. State (1921), 190 Ind. 558, 564, 130 N.E. 227. And since he was only found "guilty of assault and battery with *Page 416 intent to commit rape," and was sentenced only to imprisonment for not less than two nor more than fourteen years, as provided by § 2417 Burns 1926, § 2240 Burns 1914 (Acts 1905 p. 584, § 352), and not to suffer the far greater penalty for rape prescribed by § 1, ch. 148, Acts 1921 p. 374, we hold that the evidence sufficiently proves the venue, as well as the other elements of the crime.
The judgment is affirmed.