This is a conviction for rape by assault; the punishment confinement in the penitentiary for life.
The state’s testimony shows that prosecutrix, an eleven-year-old school girl, was standing on a street corner waiting for a bus. Appellant drove up in his automobile and asked her if she wanted to ride. She accepted, and got into the car. Then he drove into the country, and raped her by force.
*296Appellant did not testify. The defense of insanity was presented by the testimony of lay witnesses.
Appellant contends that his insanity was so overwhelmingly established that the jury were not authorized to reject same, especially in view of the fact that the state offered no testimony contradictory thereof.
While it may be true that the appellant presented a strong case of insanity, this was, nevertheless, a question of fact primarily for the jury and we would not be authorized to reject the finding, especially in view of the legal presumption that all persons are sane.
It is also contended that the facts fail to reflect the state proved that prosecutrix was not the wife of appellant. To this contention we cannot agree. We note that prosecutrix testified that she never saw the appellant prior to the time he accosted her on the street, that he was a complete stranger to her, and that she was “not married to that man.” This was sufficient to authorize the jury to find that she was not the wife of appellant.
The charging part of the indictment reads as follows:
“. . . . did, then and there unlawfully in and upon Jessica Nell Paris, a female then and there under the age of fifteen years, make an assult, and the said Tom Randolph Griffin did then and there ravish and have carnal knowledge of the said Jessica Nell Paris, the said Jessica Nell Paris not being then and there the wife of the said Tom Randolph Griffin. . . .”
It is contended that the use of “assult” rather than the word “assault” rendered the indictment fatally defective.
Under the provisions of Art. 1183, P. C- C., the carnal knowledge of a female under the age of eighteen years other than the wife of the accused, with or without her consent and with or without the use of force, threats, or fraud, is rape.
The instant indictment alleged the constituent elements of that offense. It was therefore sufficient, and the use of the term “assult” — whether intended for the word “assault” or not— could be rejected as surplusage, an allegation that an assault was made upon the prosecutrix being unnecessary in addition to the other allegations of the indictment.
Finding no reversible error, the judgment is affirmed.
*297Opinion approved by the court.