Appellant was convicted of an assault with intent to rape, and his punishment assessed at six years in the penitentiary, and he prosecutes this appeal. The indictment charges the offense to have been committed on a female under the age of fifteen years. The evidence shows that appellant was sleeping at the house of the prosecutrix, in the kitchen; that the prosecutrix, who was ten years of age, was sleeping in an adjoining room, and her parents in the front room. The door between the kitchen and the room in which the prosecutrix was sleeping was bolted, and there was no mode of ingress into said room from the kitchen, except by climbing over a partition wall. The evidence indicated that the entry had been made by that means. Some time in the night, the mother of the prosecutrix, hearing a noise in her daughter's room, went in, and saw the defendant on top of the prosecutrix. He had his drawers pulled down, and had unbuttoned her drawers, and appeared to be about to copulate with prosecutrix. The prosecutrix had not been aroused from her slumber. The mother gave the alarm, and her husband rushed in, and seized appellant. Appellant at first claimed to be walking in his sleep, but subsequently said he had done wrong. The charge of the court was pertinent to the issues as presented by the testimony, and we think the evidence showed the use of such force as to establish the specific intent of the defendant to have carnal intercourse with the prosecatrix. The judgment is accordingly affirmed.
Affirmed.
ON MOTION FOR REHEARING.