The offense is persuading a child under the age of 14 years to enter a motor vehicle for the purpose of committing an aggravated assault upon such child under Article 535b, V.A.P.C.; the punishment, one year in the penitentiary.
The injured party was a six-year old girl of Latin-American extraction. She and her ten-year old brother were on the way home from school when the appellant came along in an automobile and offered them a dime to get in the automobile with him. He then drove about two miles in the country where he brought his automobile to a halt.
Lupe, the older brother, testified that after they stopped the appellant told his sister to lie down and “he just run her dress up with his hand like that and try to get her underwear off” but “didn’t quite get them offthat she cried: that the appellant desisted and drove them back to town; and that his sister was still crying when they got out of the automobile.
The injured child testified that the appellant tried to take off her “panties” and that she cried because she was afraid of him.
It was proven, without objection, that a few days following the instant assault the appellant had plead guilty to some type of sex offense against a five-year old boy and received a three-year suspended sentence.
The appellant did not testify in his own behalf but offered a number of witnesses as to his reputation.
The facts will be discussed more fully in connection with the contentions advanced in appellant’s brief and argument.
*300The appellant was seventeen years of age and therefore could not be guilty of aggravated assault under Subsection (9) of Article 1147, V.A.P.C., and the exception contained in the 1954 Amendment applies only to that sub-section.
He first contends that the evidence is insufficient to support the charge as plead and submitted to the jury. The count of the indictment submitted to the jury alleged that the appellant enticed the child to enter a vehicle “for the purpose of committing an aggravated assault on said child.” The court charged the jury under Subdivision (5) as follows: An assault becomes aggravated “when the means used is such as inflicts disgrace upon the person assaulted. Indecent familiarity by a male person with a female person against her will and without her consent is aggravated assault.”
He then told the jury that if it found that the appellant with lascivious intent enticed, allured, persuaded or invited the injured child to enter a vehicle for the purpose of committing an aggravated assault on said child, they should find him guilty.
It has been the consistent holding of this court that a minor may commit an aggravated assault under any of the subdivisions of Article 147 except Subdivision (9) and that the indecent familiarity by a male person with a female person against her will and without her consent is aggravated assault. Hand v. State, 88 Tex. Cr. Rep. 422, 227 S.W. 194, and cases there cited.
From the above evidence, the jury was authorized to conclude that the appellant with lascivious intent enticed the injured child into the automobile for the purpose of committing an aggravated assault upon her. Whether or not the acts of the appellant fell short of indecent familiarity is not before us, and the fact that the appellant desisted without the intervention of an outside force did not preclude the jury from finding that such was his purpose at the time he enticed her to enter his automobile. Fisher v. State, 160 Tex. Cr. Rep. 634, 274 S.W. 2d 397.
We here observe that the appellant should not be permitted to complain that he was charged and the jury was instructed that he might be found guilty if it believed that his purpose was to commit a misdemeanor, to-wit, aggravated assault, when the facts showed that his purpose was to commit the more serious felony of fondling.
*301Appellant next contends that the court erred in failing to charge on circumstantial evidence. We are cited no cases in support of such contention and know of none that would require the giving of such a charge under the facts before us here.
Appellant next asserts that the trial court erred in not submitting simple assault. We do not think so. Simple assault is not a lesser included offense under an indictment for the offense here charged.
When the appellant enticed the child into the automobile for the purpose of having indecent familiarity with her, the felony offense here charged is complete. Whether or not he ultimately committed the aggravated assault upon her is not the test.
Appellant’s last contention is that the court erred in refusing to permit his counsel to inform the jury that a conviction in this case would require that the sentence herein be cumulated upon the revocation of the suspended sentence under which the appellant was then at liberty. This was clearly a question of law and not one of fact to be submitted to the jury.
Finding no reversible error, the judgment of the trial court is affirmed.