*343ON appellant’s motion for rehearing.
WOODLEY, Judge.Appellant urges that we erred in holding that the facts were sufficient to sustain the conviction. He points out that the confession shows a completed act of intercourse, not an assault to commit the same.
His proposition of law is stated as follows: “though a jury on an original trial may convict of a lesser offense, it may not so do when the undisputed facts show the greater offense to have been committed.”
The statutes of this state and the holdings of this court are to the contrary.
Sec. 9 of Art. 753 C.C.P. provides for the granting of a new trial when the verdict is contrary to the law and evidence. It reads in part as follows:
“A verdict is not contrary to the law and evidence, within the meaning of this provision, where the defendant is found guilty of an offense of inferior grade to, but of the same nature as, the offense proved.”
Construing this article this court held in Wysong v. State, 66 Tex. Cr. R. 201, 146 S.W. 941, that a conviction for manslaughter should be sustained though the evidence shows the offense of imurder and not manslaughter.
In Crowder v. State, 78 Tex. Cr. R. 344, 180 S. W. 706, we held that one accused of murder but convicted of negligent homicide was not entitled to a new trial though the evidence showed murder and not negligent homicide.
In Wilson v. State, 132 Tex. Cr. R. 158, 103 S.W. 2d 156, we held that the trial judge was correct in refusing to charge the jury that the accused could not be convicted of assault with intent to rape if he pénetrated the person of the prosecutrix, in view of said Sec. 9 of Art. 753 C.C.P.
In Tackett v. State, 136 Tex. Cr. R. 445, 125 S.W. 2d 603, the conviction was for assault with intent to rape under an indictment charging rape. We overruled the contention that the conviction was erroneous because under the state’s version the *344jury should have convicted for rape, while the defense showed no offense was committed.
In Carter v. State, 121 Tex. Cr. R. 493, 51 S.W. 2d 316, we upheld a conviction for aggravated assault, though the offense charged and proved was rape.
In Grimes v. State, 71 Tex. Cr. R. 614, 160 S.W. 689, 691, is found the following:
“If the testimony of Bessie Smith should be held to show rape, instead of assault to rape, which is exceedingly doubtful, yet, as the state elected to prosecute him for assault to rape, appellant would not be heard to complain.”
Other cases may be found where we have held that conviction of a lesser grade of offense will be sustained though the evidence shows that a greater offense had been committed. See Gatlin v. State, 86 Tex. Cr. R. 339, 217 S.W. 698; Campbell v. State, 65 Tex. Cr. R. 418, 144 S.W. 966.
We remain convinced that the confession is sufficiently corroborated and that the evidence as a whole is sufficient to sustain the conviction.
Appellant’s motion for rehearing is overruled.