On Motion for Rehearing.
LATTIMORE, J.In his motion for rehearing appellant renews his insistence that our holding the trial court not in error in charging the jury on aggravated assault is in conflict with prior opinions of this court, notably Dusek v. State, 48 Tex. Cr. R. 519, 89 S. W. 271, and Charles v. State, 81 Tex. Cr. R. 459, 196 S. W. 179.
We find nothing in the Dusek Case, supra, indicating that the alleged assault was upon a child of tender years who, both from the record and in the very nature of things, would have little understanding of what would be a completed act of intercourse, as is the case before us. The opinion in the Du-sek Case, supra, is not very clear in its fact statements, but seems to. indicate that all the legitimate testimony showed a completed act of intercourse with a woman. Even so, we would not think the accused could complain of the submission in the charge of any lower grades of the offense comprehended by an indictment charging rape; and, in so far as said opinion holds, if it does, contrary to the view just expressed, same will be overruled.
Quite a different situation arises in Charles v. State, supra, Bryant v. State, 46 Tex. Cr. R. 126, 79 S. W. 554, and others, making similar- holdings where the testimony shows a completed case of rape, and a charge has been asked by the accused submitting some lower grade of the offense comprehended. Where there is no question but that the offense is a completed act of intercourse or nothing, the giving of a charge submitting a lower grade of such offense would be an injury to the state but favorable to the accused ; hence the holding in the cases last referred to to the effect that the accused was not entitled to have a charge given submitting the lower grades of the offense in such cases. The difference in the principle involved appears so plain as not to call for analysis.
In the case before us the alleged injured party was a child of tender years, as appears from our original opinion. She was without experience in such matters. There could be no doubt arising from the testimony of prosecutrix and the other little girl of the fact that appellant made some kind of assault upon the child. There might be doubt as to whether there was a completed act of intercourse. The trial court in such case was justified in submitting to the jui?y the lower grades of assault comprehended by the indictment. The state alone might have cause for complaint at the giving of such charges. The appellant has none:
The motion for rehearing will be overruled.