Appellant brings this case before us upon his motion for rehearing. We have carefully reviewed the record, and see no reason for changing our former opinion.
The evidence of the prosecutrix that appellant told her her age, was admissible, both as a statement against his interest made by the accused, and as a statement relative to her age made by one standing in loco parentis.
The jury are primarily the judges of the credibility of the witnesses, and the weight to be given their testimony, and unless there appears a manifest abuse of their discretion in these matters, a verdict shold not be disturbed by us.
We do not think the statement made to the witness Woodward by the prosecutrix, nor the letter written by her to appellant, after the alleged commission of the offense, constitute such matters as would justify us in saying that the jury had no right to accept as true her statement of appellant's treatment of her.
Nor do we think a conviction of assault with intent to rape, unwarranted because of the fact that prosecutrix testified that appellant had sexual intercourse with her, while the doctor who examined her shortly after the occurrence, testified that because of the smallness of her private parts, in his opinion, a man could only have had partial intercourse with her. The physician said that at the time of his examination, the private parts were inflamed and sore and very tender, and coupled with her statement as to what appellant had done to her, we think the jury were in their province in concluding that what she thought to be an act of intercourse, was no more than an attempt on the part of the appellant. *Page 352
We also think the testimony sufficiently strong to show that character of force necessary under our decisions and statutes, when the assaulted party is under the age of consent, and that the court's charge with reference thereto was not error.
The motion for rehearing is overruled.
Overruled