Appellant was convicted of an assault with intent to rape on a female under fifteen years of age, his punishment being assessed at two years confinement in the penitentiary.
Appellant's main insistence in this record is that the verdict is contrary to the law and unsupported by the evidence. The *Page 613 testimony shows that prosecutrix was fourteen years of age, and appellant sixteen years of age. They lived in the country below Barksdale, and had known each other for years, having gone to school together. Prosecutrix lived farther from town than appellant. Prosecutrix had gone to town on the morning of the alleged assault, and was coming home alone on foot about 12 o'clock. The circumstances of the assault are related by her as follows: "After I left Bort's house and passed Cromeans' place, and had gone through the gate near Cromeans' place, known as the Rhodes gate, and had gotten about half way from there to the Sweeten gate, which is about one mile from Ross Cromeans' house, Ross Cromeans passed me on horseback, going the same way I was going. When I reached the Sweeten gate Ross Cromeans was there and had gotten off his horse and was standing at the gate kicking it. I asked him three times to get out of the way and let me pass. He then said to me: `Let me see your cock.' I told him I would not do it, and for him to let me through, and then he said: `Let me fuck you.' I said I would not and then tried to get through and he caught me by my hand, and I jerked loose from him, and then he caught me by my arm, and I jerked loose from him again and ran away back down the road towards Barksdale. I did not see him any more that day. He did not follow me." Appellant denied meeting the prosecutrix at the Sweeten gate. He introduced a number of witnesses to show he did not see her at said gate, which was nearly a mile from his house, but he testified to having a conversation with her at a gate nearer his father's house, in which he made an indecent proposal to her. He testified that he never did have intercourse nor attempt to have intercourse with Bertha Bradley at any time. "I have never had intercourse with any woman. I did not try to have intercourse nor expect to have intercourse with her. I just said what I did to her to see what she would say. I do not know what made me do it." Nothing further is shown to have occurred between the parties than that above detailed. In addition to the above, the statement of facts shows that appellant testified to the following: "It is not true that I accosted her or caught hold of her or made any remarks to her on the 8th day of last June at the Sweeten gate, but I just remarked to her at the Rhodes' gate that she had better give me some before she left and she got very mad, and said she would not do it and picked up a rock. I told her she need not get mad, I was not going to do anything to her, and I turned and walked away and she started on down the road. I did not catch her by the hand nor arm; I did not touch her, and that is all I said to her." Under the authorities of this court this evidence makes out an assault with intent to rape on a child under fifteen years of age. See McAvoy v. State, 41 Tex. Crim. 56; Carter v. State, 44 Tex.Crim. Rep.; Hudson v. State, 49 Tex.Crim. Rep.. The jury saw fit to believe the prosecutrix's testimony *Page 614 to the effect that appellant did take hold of the prosecutrix. This is an assault, the elements of consent vel non not entering into a prosecution for assault with intent to rape upon a child under fifteen years of age. Appellant having the specific intent to rape where he takes hold of the prosecutrix, makes out the offense under the authorities of this court. Appellant in his brief insists this court should review the authorities on this question anew. We have done so, and hold that the case of Croomes v. State, 40 Tex.Crim. Rep., lays down the correct rule, which has been followed uniformly since by the majority of this court. When appellant seized hold of the prosecutrix, according to her testimony, clearly in the light of his offensive suggestion made to prosecutrix above detailed, this showed a specific intent to have carnal intercourse with prosecutrix with her consent. The charge of the court admirably presented the law applicable to the facts of this case, and in clear consonance with the decisions of this court, and there is no error in this record authorizing a reversal of this case. The judgment is affirmed.
Affirmed.