Appellant moves for a rehearing, alleging it to be reversible error for the court to fail to charge on aggravated assault. There was no exception to the failure of the court in this regard, as is shown by the qualification placed on bill of exception No. 8. We further observe that we have carefully gone over the testimony and are of opinion that same wholly fails to exhibit a case in which harm could have resulted to the accused from the omission of such charge. The testimony is in direct conflict, — that for the State affirming — that for the defense denying, — any grade of assault save such as constituted rape.
Nothing in the testimony for the State supports a possible conclusion for any grade of assault less than rape. Nothing in the defensive testimony supports any theory that appellant took hold of the prosecutrix in any effort to induce her to submit to him without force; or in the form of indecent familiarity. Appellant did testify that prosecutrix suggested to him on the occasion in question that they marry that night, *Page 223 and that he replied that she had told him her menses would be on her on that Sunday night, and that when she said in reply that she was not sick, — he raised her dress and saw blood on her under-garments. He swore that this was not a part of any effort to have carnal knowledge of her, and that what he did in this connection did not cause prosecutrix any offense. She denied this occurrence. We see nothing in this to demand at the hands of the court a charge on aggravated assault.
The motion for rehearing is overruled.
Overruled.