ON APPELLANT’S MOTION FOR REHEARING
DAVIDSON, Judge.Appellant presses upon us his contention that the facts do not warrant this conviction and that we ought not to let it stand because of the insufficiency of the evidence.
We are not unmindful of the seriousness of the question, both from the standpoint of the appellant and of the state. For that reason we re-examined the entire record.
It must be remembered that this is not a case of rape where penetration is necessary to be established in order to constitute such an offense.
*260Here, the conviction is for assault with intent to rape, the essential elements of which are the assault and the specific intent to commit the crime of rape.
The testimony of the prosecutrix is deemed sufficient, in law, to show those elements. It was the province of the jury to pass upon the credibility of that witness and to weigh her testimony.
The jury saw and observed the witness and accepted her testimony. The trial court also saw and observed the witness, and refused to set aside the conclusion of the jury.
We are not here dealing with the question of an absence of testimony or legal insufficiency but rather with the question presented as to the weakness of testimony.
We remain convinced that the facts are not such as would warrant the overturning of the jury’s verdict.
Presiding Judge Morrison remains convinced that the conviction should be reversed for the reasons pointed out in his dissenting opinion.
The motion for rehearing is overruled.