The plaintiff in error, hereinafter called defendant, was convicted in the district court of Custer county of assault with intent to rape and his punishment fixed at imprisonment in the state penitentiary for a term of five years.
No briefs in support of the appeal have been filed, but the cause was orally argued at the time the case was submitted.
An examination of the record discloses that at the time charged the prosecuting witness, Rita Marical, and one Minnie Williamson were riding in an automobile with defendant and others, and while out in the car defendant assaulted the prosecutrix and attempted to have intercourse with her by force. The record discloses an aggravated assault to commit a rape. An issue of fact is raised, but the credibility of the witnesses and the weight of the testimony was for the jury. We see no reason to disturb the judgment.
The case is affirmed.
DAVENPORT and CHAPPELL, JJ., concur. *Page 128