Appellant in his motion takes exception to the statement in our original opinion herein where we said that: "The question of her (Mrs. Pitman's) credibility and the weight to be given to her testimony was within the exclusive province of the jury, and this court would not be justified in disturbing their finding on such fact," his argument being based upon the fact that this court has reversed many cases upon the lack of, or insufficiency of, the evidence. Evidently the lack of testimony, or the insufficiency of testimony, to make out a case has been confused with the credibility of the testimony.
We think that the position in which Mrs. Pitman testified she saw appellant's body upon that of the little ten year old girl, the condition of appellant's body and his organ when he got up from over the child's body, the child's statement, contradictory as it may be in portions thereof, as well as the doctor's statement showing a bruised condition of the child's private parts, with mucus tinged with blood, — doubtless had weight with the jury in arriving at their conclusion of appellant's guilt.
We think the facts are sufficient upon which to base the jury's verdict of an assault with intent to rape, and the motion is therefore overruled.