ON PETITION FOR REHEARING. The only question presented for consideration by the assignment of errors and the "points" in appellant's brief, and the only question discussed in the brief, was whether or not there was evidence sufficient to prove that appellant committed an assault and battery on a girl fourteen years old, in Huntington county, Indiana, with the intent to commit rape. The prosecuting witness and her girl companion both testified that appellant had sexual intercourse with her just after dark, on the evening of June 3, 1923, in the enclosed part of a Ford delivery truck while it was stopped at the side of the road a few miles from where they lived, at Andrews, Indiana, which is in Huntington county. The boy who drove the truck testified positively that the place where it was stopped was in Wabash county (though denying that any intercourse took place there), and both the girls admitted, on cross-examination, that they had driven across the line into Wabash county before the act was consummated. But the undisputed evidence was that appellant and the prosecuting witness climbed into the back part of the delivery truck at about six o'clock in the evening of that day, that the rear doors were then closed and fastened, completely shutting them in, and that they sat on the floor of the car, back there, while it was driven north *Page 417 and then west to a point some distance from Andrews. And the prosecuting witness testified that appellant put his arm around her before they had reached the interurban station at Andrews, that they drove north two squares and during that time he continued to have his arm around her and put his hand on the calf of her leg, and she answered "Yes, sir," to the question, "Tell the jury whether the touching of the leg and the hugging of your person occurred in Huntington county, Indiana." She testified that it was about six o'clock on the evening of June 3, 1923, when the boys drove up and asked the girls to ride, and that they drove out into the country and waited until after dark, when he and she again climbed into the back part of the truck, and that appellant had intercourse with her in there just after dark that same evening, as he is alleged to have intended to do when he touched her earlier in the evening in Huntington county.
Through inadvertence, appellant's request for an oral argument was overlooked, and a decision affirming the judgment was announced without hearing such an argument. Asking that the decision be set aside and argument heard, appellant propounds as the questions to be discussed: (a) Whether or not there was any evidence that appellant touched the girl unlawfully in Huntington county; (b) whether or not the evidence of what he did after they had crossed into Wabash county can be considered on the question of his intent when he put his arm around her and put his hand on her leg in Huntington county; and (c) whether or not the fact that later the same evening, he actually had sexual intercourse with the girl (if competent on that question) supports an inference that he touched her with that intent when he took hold of her in the manner as stated.
The girl being only fourteen years old, as was shown *Page 418 by undisputed evidence, neither force nor lack of consent was an element of the crime for which appellant was convicted. 2-4. That being true, this court does not deem the answer to either of the above questions open to doubt. The law of Indiana absolutely forbids any touching of a girl under sixteen years of age with the purpose and intent to have carnal knowledge of her person (§ 2429 Burns 1926, § 2250 Burns' Supp. 1921, § 1, Acts 1921 p. 373), or even with the intent thereby to induce her to be guilty of indecent or immoral conduct (§§ 1695, 1696 Burns 1926, §§ 1641, 1648 Burns' Supp. 1921, §§ 1 and 2, Acts 1917 p. 341). That taking hold of the girl's leg while sitting on the floor of the truck with his arm around her, if done with intent thereby to induce her to do what she actually did a few hours later with him at that same place in the truck, was unlawful, is beyond dispute. And where the felony charged to have been intended was actually committed soon afterward, in the course of the same evening, in the same compartment of the same automobile, while out for the same pleasure trip on which they were then starting, the mere fact that the automobile had been driven across a county line in the meantime cannot affect the probative force, as evidence of the intent with which he began to take liberties with the girl's person when starting, of the proof of what he actually consummated before bringing her back home. It has been held that evidence to the effect that two hours earlier the same evening, on the same train, while on the same journey, the defendant had consummated a like offense was admissible, in a prosecution for sodomy, committed on a passenger on a transcontinental train, to prove the intent with which he made a second assault, although the first one was committed on a different passenger and while the train was in a different state.State v. Place (1893), 5 Wn. 773, 32 P. 736; *Page 419 Borolos v. State (1924), 194 Ind. 469, 473, 143 N.E. 360, 362; See, also, Kiser v. Woods (1878), 60 Ind. 538, 541.
A felonious intent may be shown by proof of acts of the defendant so connected with the offense charged as to clearly manifest his purpose, wherever they may have been done. 5, 6. And what a man actually did with a girl while out for a drive was thus connected with the advances he made toward familiarity when starting out. The question whether or not an inference of felonious intent in touching the girl should be drawn was properly left to the jury, and we cannot disturb its finding.
Setting aside the judgment and granting a reargument of these questions could not serve any good purpose.
Appellant's petitions to withdraw the opinion of the court, to set down the case for oral argument, and to grant a rehearing are all overruled.