Appellant was convicted of an assault with intent to rape, and his punishment assessed at confinement in the penitentiary for two years, and prosecutes this appeal. Appellant made a motion for a continuance in this case, on the ground that he desired the testimony of W.D. Ledford and Mattie Ledford, residents of California; that he had been recently arrested, and did not have time to procure their depositions. This, we think, was reasonable diligence; but we fail to see the materiality of this testimony. As stated, it was for the purpose of showing a conspiracy instigated on the part of one W.J. Sullivan to cause defendant to be convicted of this offense, in order to save the reputation of his wife, who was the daughter of the defendant. The substance of the testimony was to the effect that Jennie Sullivan confessed to her husband that she had had carnal intercourse with her father before her marriage with said Sullivan. Sullivan was not a witness in this case. Therefore the object of this testimony was not to affect anything that he might testify to. This is certainly a peculiar sort of conspiracy, the object of which was to save the reputation of his wife by showing in court a confession of her intimacy with the defendant. We utterly fail to see, under the facts and circumstances of this case, how said testimony was calculated to benefit the defendant, or how the same was material to solve any issue in this case. In addition to this, it was stated that it was expected to be proved by Mattie Ledford that she was in Weatherford the day that Mamie Callison, a witness for the State against the defendant, went before the grand *Page 216 jury, and, immediately after said Mamie came out of the grand-jury room, she told her (witness) theft she had had carnal intercourse with her brother Tom, and with no other person. This part of the bill fails to show how this portion of the testimony was pertinent. It is not shown that said Mamie testified on the trial that she had had intercourse with any other person except her brother Tom, and it is not shown that she testified that she had had intercourse with her father; and if we recur to the statement of facts, in order to help out the bill (which we are not permitted to do), still that does not show how this testimony became material. There was no error in the court's overruling the motion for a continuance. There was no request to postpone the case for two days after service of copy of the indictment, nor is there any bill of exceptions showing that defendant raised this question. For aught that appears (if it be conceded that he went to trial before the expiration of two days after the service of the indictment), he went to trial voluntarily, without objecting to this course of procedure. Defendant objected to the court's proceeding on both counts in the indictment. There were two counts in the indictment. Testimony was introduced in regard to both. There was no error in this action of the court. As explained by the judge, there was no error in the court permitting leading questions to be put to the prosecuting witness, Willie Callison. She was the daughter of the defendant, was under his influence, and manifested an unwillingness to testify in the case. Nor was there any error in the court's permitting said witness to testify as to two transactions, nor in permitting the witness, Mamie Callison, to testify as to still another transaction. There were two counts in the indictment. The testimony of the first witness was evidently under the first count — that is, the one which alleged that she was under 12 years of age at the time of the alleged act; and the testimony of the other witness was as to an act under the second count, in which it was alleged that the act was committed when the prosecutrix was under 15 years of age. Aside from this, testimony of other acts was admissible for the purpose of reinforcing and corroborating the testimony as to a particular act. See, Hamilton v. State, 36 Tex.Crim. Rep.. No error appears in the action of the court in authorizing the State to prove by the sheriff of Parker County that, on the day after defendant was put in jail, he saw Willie Callison sign a statement written by the County Attorney. This statement was not introduced in evidence, and we see no harm that could ensue to the defendant from the mere statement of a witness that he saw said witness sign a statement. Appellant complains of the charge of the court, and insists that the court should have given the several special instructions requested by him. Some of these instructions go to define the specific intent with which the assault was alleged to have been committed. In our opinion, the court gave a correct charge upon this subject, and it was sufficient. Nor do we think the court committed any error in failing to charge on aggravated assault and battery. In the charge of the court, the jury were instructed under *Page 217 both counts in the indictment, and the charge clearly pointed out the time when the law of 1895 went into effect, which raised the age of consent from twelve to fifteen years. The charge given the jury on the first count directed them, if they believed the act was committed before the 30th of July, 1895, and that the prosecutrix was then under 12 years of age, to convict defendant, regardless of whether or not she consented to the attempted act of carnal intercourse.
Under the second count, the jury were instructed, if they believed the attempted act of carnal intercourse was committed since the 30th of July, 1895, and prior to the 16th of October, 1896 (the date of the filing of said indictment), to convict defendant, regardless of whether or not the prosecutrix consented to the attempted act of carnal intercourse. This was responsive to the two counts in the indictment, as well as the evidence introduced in the case, and was correct. The court, also, in this connection, instructed the jury, if they believed the assault charged, if made at all, was made prior to the 30th of July, 1895, and "if you believe that, at the time the same was made, the said Willie Callison was 12 years of age or over, you will find the defendant not guilty. If the assault, if made at all, was made prior to the 30th day of July, 1895, you cannot convict the defendant, unless you find and believe beyond a reasonable doubt that the said Willie Callison, at the time of said assault, was under the age of 12 years." This, we believe, was as liberal a charge, as the defendant was entitled to under the circumstances of this case. We have examined the testimony, and while the prosecutrix testified to two acts prior to the 30th of July, 1895, she is so indefinite as to time as to leave it uncertain as to whether these acts of attempted intercourse were committed before or after she was 12 years of age; and we might not be willing to sustain a conviction under this count. But on the second count we do not believe there can be any question as to the attempted act of carnal intercourse. On this branch of the case, Mamie Callison testified: "Willie Callison, who has just left the stand, is my sister. She was 13 years old on the 28th day of last April. I saw my father trying to do something to Willie last spring. It was at her home, which is in Parker County, Texas. They were lying down in the middle of the floor, in the main room of the house. Willie's clothes were pulled up, and my father's pants were pulled down. He was lying on top of her. When they saw me, they got up, and one went one way, and the other went in the opposite direction." The trial of this case was at the fall term, 1896, and "last spring," alluded to, was the spring of 1896. It is not controverted that the prosecutrix was not 15 years of age at the time, and the law of 1895, raising the age of consent to fifteen years, was then in effect. The above proof, we think, shows an attempt, at least, on the part of the defendant, to have carnal intercourse with his daughter, Willie Callison. The fact that she was consenting makes no difference. The statute makes carnal intercourse under such circumstances, with or without consent, rape; and we have held that an attempt to have carnal *Page 218 intercourse of a female under the age of 15 years, with her consent, was an assault with intent to commit rape, where the evidence made it manifest that it was the purpose of the defendant to have carnal knowledge of such female. The force used in the effort at penetration is sufficient to constitute the act of assault with intent to rape. See, Allen v. State,36 Tex. Crim. 381. The judgment is affirmed.
Affirmed.
[NOTE. — Motion for rehearing filed by appellant, was overruled without a written opinion. — Reporter.]