In this case the facts show an actual assault by the use of force, and a showing of an attempt to physically penetrate the alleged injured female by appellant. She testified that she was not sure on the question of penetration, which probably led to his conviction for assault with intent to rape, instead of a conviction for the completed offense. The trial court in his definition of an assault and battery concluded same by saying that the injury intended might be either bodily pain or constraint. This might be objectionable in some cases, but would hardly be liable to lead the jury upon facts such as these before us to convict upon less force than is the legal measure of force necessary in an assault to rape. In his application of the law to the facts the trial court told the jury that in order to convict appellant of assault to rape, they must believe from the evidence beyond a reasonable doubt that he did assault prosecutrix with the specific intent by such assault and by actual force, to have carnal knowledge of her, before they could convict. It would strain credulity to believe that the jury may have found appellant guilty upon their belief that he only intended to constrain prosecutrix.
Appellant's father testified, as appears from the statement of facts, in answer to questions from appellant's counsel, that the Blalocks were guarding his place with guns the afternoon of the assault to keep appellant from running off before "The law" got there. On recross-examination it was developed by the State that the Blalocks had told Mr. Phillips that such was their purpose in being near appellant's house that afternoon with their guns. The matter seems of little materiality, and having been brought out originally by appellant, we are not prepared to say that the trial court was in error in refusing to strike it out in response to appellant's motion made after the recross-examination of the witness.
Believing the case correctly decided in the original opinion, the motion for rehearing is overruled.
Overruled. *Page 56