ON MOTION FOR REHEARING.
GRAVES, Judge.Appellant again insists that the proven facts herein fail to establish his guilt of an assault with intent to rape and cites us *177to the case af Rutkowski v. State, 137 Tex. Cr. R. 541, 132 S.W. (2d) 880. There seems to be quite a difference in the facts delineated in such cited case and the present one. In that case there was nothing that intervened between the accused fondling the person of the complaining witness save the failure of accused to attempt to go further and attempt to penetrate the witness’ private parts, but he merely failed to do aught further than fondle her and evidenced no intent to rape. In the present case, the lady bravely defended herself, and by scratching, fighting and kicking the appellant, she was able to frustrate his attempt to offer the violence to accomplish his purpose, which from his actions, the jury concluded was to rape her.
We are of the opinion that the complained of remark of the state's attorney, as alluded to in the original opinion, was in answer to a statement of appellant’s attorney; and further, in view of the jury awarding the lowest penalty herein, we are not inclined to reverse this cause thereon. See 4 Tex. Jur., p. 595, sec. 417; also 42 Tex. Jur., p. 350, sec. 277.
The motion will be overruled.