ON APPELLANT’S motion for rehearing
WOODLEY,- Judge.Under a charge defining an assault as the use of any unlawful violence upon the person of another, whatever be the means or the degree of violence used, and informing the jury that an assault becomes aggravated when committed by an adult male upon the person of a female, the jury found appellant guilty. They thereby rejected his defense of alibi, and accepted the testimony of the prosecutrix as true.
*323We are asked to reverse the conviction because the court in his charge did not submit to the jury two instructions, both predicated upon a finding that appellant placed his hands on the prosecutrix’ arm. The first was to the effect that if appellant had reasonable ground to believe and did believe that such act would not be objectionable, he should be acquitted. The other would have advised the jury that unless such act caused her a sense of shame, constraint or other disagreeable emotion of mind appellant should be acquitted.
On rehearing it was pointed out that the evidence did not show a mere touching of the arm of the prosecutrix, but showed the use of violence.
Unless the infliction of injury by such assault was controverted, we would not be justified in reversing the conviction because the later charge was not submitted.
The majority remain convinced that in the case before us, if the testimony of the prosecutrix is true, the violence used by appellant upon her resulted in injury to her person and feelings.
Nor do we find that the evidence raised the issue that appellant had reason to believe and did believe that his actions would not be objectionable to the prosecutrix.
Appellant points to his testimony to the effect that he had known and been around the prosecutrix most of her life; that she had married the second time before she was seventeen years old; that between her marriages he had seen her in the field with a man and fellow worker and they were hugging and kissing. It is further suggested that this man was living in the home of the prosecutrix and her parents at the time.
Other pertinent facts are that appellant, a forty-seven year old married man, did not testify or claim that he thought that his advances would be acceptable to the prosecutrix, but denied his very presence on the occasion in question. Also he knew the prosecutrix was seventeen years of age, that she was married and was pregnant, and though he had been around her since her early youth, had been her employer and on occasion had been in her presence when they were alone, there is not the slightest suggestion that she at any time so conducted herself toward appellant as to invite his advances or suggest that such would be welcomed or countenanced.
*324Under the facts here, we remain convinced that the appellant’s sole defense was that of alibi. This was properly submitted to the jury and resolved against him. His theory was that he made no advances and no assault, not that he believed that his advances would be acceptable or that the assault upon her did not result in injury.
Another claim of error is that the court refused to strike the testimony of Mrs. Ruby Rushing.
Mrs. Rushing occupied an apartment adjoining- that of the prosecutrix. She testified that she saw appellant around 3 P.M. one afternoon as he was coming from the apartment occupied by the prosecutrix. She was unable to fix the date.
It is appellant’s contention that because Mrs. Rushing was unable to identify the date, time and place of the alleged offense, her testimony should have been striken.
According to Mrs. Rushing, appellant was alone when she saw him leaving the apartment; that if he had a truck and someone was in it she was not aware of that fact. She fixed the time of seeing him at 3 P.M. or shortly thereafter.
According to appellant’s testimony he was at the apartment only once and that was the previous Monday when a brother of the prosecutrix was with him. He testified “We come out the door together” and “about that time this lady come up and I talked to her.”
We are unable to agree that the trial court abused his discretion in not striking the testimony. Its weight was for the jury.
Appellant’s motion for rehearing is overruled.