ON APPELLANT’S MOTION FOR REHEARING
DICE, Judge.In his motion for rehearing, appellant, for the first time, complains of the court’s charge, no objections having been made thereto in the trial court.
Complaint is made to Paragraph No. 2 of the charge wherein the court instructed the jury that in order to warrant a conviction of the appellant for- the offense of assault with intent to rape it should appear from the evidence beyond a reasonable doubt that he made the assault upon the female and' that he “then and there had the specific intent by such assault, with or without the use of force * * *, to obtain carnal knowledge of said Linda Kay Craig.” (Italics Added.) Appellant insists that the instruction was fundamentally erroneous because it instructed the jury that the offense could be committed without the use of force and was therefore contrary to the rule announced in Croomes v. State, 40 Texas Cr. Rep. 672, 51 S.W. 924, 53 S.W. 882; Maynard v. State, 154 Texas Cr. Rep. 594, 228 S.W. 2d 185 and' other cases cited that" to constitute' the offénse of assault with intent to rape upon a female under 15 years of age, the evidence must show an assault accompanied with sufficient force to show beyond a reasonable doubt the specific intent of the accused to then and there have carnal knowledge of the female. While such force is required in an offense of this nature we do not construe the court’s instruction as p're*593senting fundamental error. The court’s charge, taken' as a whole, required the jury before convicting the appellant to find from the evidence beyond a reasonable doubt that he did make an assault upon the female with the specific intent to obtain carnal knowledge of her. This was a necessary finding upon the essential elements of the offense. Cochran v. State, 162 Texas Cr. Rep. 253, 283 S.W. 2d 947. Had appellant been dissatisfied with the court’s instruction it was incumbent upon him to timely and properly object.
Appellant further insists that Paragraph No. 7 of the court’s charge, which submitted the issue of aggravated assault to the jury, presents fundamental error because it shifted the burden of proof to him and failed to give him the benefit of reasonable doubt. While the particular paragraph is subject to the criticism of appellant we find that in another paragraph of the charge the court fully instructed the jury that the burden of proof was upon the state, instructed upon the presumption of innocence and law of reasonable doubt, and applied it to the whole case. Such an instruction was sufficient and in the absence of a timely objection appellant is in no position to complain. Conger v. State, 63 Texas Cr. Rep. 312, 140 S.W. 1112 and Furr v. State, 194 S.W. 395.
We have again reviewed the evidence and remain convinced that it is sufficient to sustain the appellant’s conviction for the offense of assault with intent to rape a female under the age of 15 years as charged in the indictment.
The fact that the indictment alleged an assault with intent to ravish and have carnal knowledge of the female did not render the evidence insufficient because of the absence in the record of any evidence of want of consent of the female or of any force, as such term is defined in the statute pertaining to rape.
Recently in Rodrigues v. State, No. 29,193, opinion delivered January 8, 1958 on the state’s motion for rehearing, 308 S.W. 2d 39, where the indictment charged rape upon a female under 18 years of age, we said:
“The word ‘ravish’ implies force and want of consent, and its use in the indictment in connection with the allegation of rape of a female between the ages of fifteen and eighteen years, as here, renders the indictment sufficient to support a conviction for rape by force as well as for statutory rape. Dyer v. State, *594283 S.W. 820; Patton v. State, 105 Texas Cr. Rep. 128, 287 S.W. 51; France v. State, 148 Texas Cr. Rep. 341, 187 S.W. 2d 80.
“The word ‘ravish’ is not, however, descriptive of the offense, and it is therefore not necessary that force be proven in order to sustain a conviction under such indictment, Id.
“The use of the word ‘ravish’ by no means precluded a conviction for statutory rape, under the indictment. A conviction could be had thereunder for either rape by force or statutory rape. Dyer v. State, supra.”
Remaining convinced that the case was properly disposed of in our opinion on original submission and that no reversible error is shown.
The motion for rehearing is overruled.
Opinion approved by the Court.