The offense is assault with intent to rape; the punishment, confinement in the penitentiary for seven years.
Prosecutrix, Millie Ruth Avery, was 16 years of age at the time of the alleged assault. She had traveled by train from her home in Louisiana to Beaumont. After leaving the train she entered the automobile of appellant, who was a taxi-cab driver. She directed the appellant to drive her to the home of her sister, which was at 2778 Magnolia Avenue in the City of Beaumont. Obeying her instructions, appellant drove in the direction of her sister's home, but on arriving there failed to stop. He insisted that prosecutrix remain in the car for the purpose of accompanying him on a ride. She insisted that he leave her at her sister's home. Refusing to obey her request, appellant drove onto a country road. He finally stopped his car and requested that prosecutrix kiss him. About that time a car passed and appellant got back under the steering wheel, saying, "When that car passes don't you dare get out." She attempted to jump out of the car but appellant caught her by the arm and held her "so tight" that she was unable to free herself. At this juncture we quote from the testimony of prosecutrix: "I didn't have a chance — he was too strong — the *Page 505 more I kicked and tried to get loose from him the tighter he would hold me. So he said 'Don't act that way — I am not going to do anything but kiss you.' * * * He said 'Don't you want to?' I said, 'Kiss you?' He said, 'No, don't you want to?' He never did tell me what he wanted to do. He said, 'You can lie right down in the seat and we will use a rubber.' And I said, 'No, my mother would kill me.' And he said, 'Your mother wouldn't know it.' "
Prosecutrix testified further: "He put his hands on me from my knees up. He put his hands under my dress and felt my privates. He didn't actually attack me only with his hands. * * * He put his hands under my dress and he also felt of my breast. I was trying to fight him and keep him off of me all the time, but I couldn't, because he was too strong and I couldn't shove him off."
Finally prosecutrix managed to free herself from appellant and hailed a passing car. The lady who was driving this car testified that just as she passed appellant's car prosecutrix screamed; that she took prosecutrix into her car; that she was crying, and was very nervous and white; that she told the witness what had occurred; that witness took the number of appellant's car; that later appellant brought prosecutrix's suit case to witness' car, saying that he had made "a mistake about this little girl."
Testifying in his own behalf, appellant admitted that he asked prosecutrix to have sexual relations with him. It was his version that she had voluntarily gone riding with him and had advised him that he might come to see her that night. It was appellant's further version that he had in no manner assaulted prosecutrix. He denied that he made the statement attributed to him by the witness who took prosecutrix into her car.
Appellant contends that the evidence is insufficient to support the judgment of conviction. We are unable to reach the conclusion that the proof is not sufficient to show an assault by appellant with the present intent to have sexual intercourse with prosecutrix. See Douglas v. State, 132 Tex.Crim. R., and Hightower v. State, 65 Tex, Cr. R. 323.
The judgment is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 506
ON MOTION FOR REHEARING.