Herbert v. State , 49 Tex. Crim. 72 ( 1905 )

Appellant was convicted of an assault with intent to rape, and his punishment assessed at two years confinement in the penitentiary; hence this appeal. The indictment properly charged an assault on a female under the age of 15 years, by the use of force. See the subject discussed in Croomes v. State,40 Tex. Crim. 672, particularly on motion for rehearing.

There was no necessity for the court to charge on alibi. As we understand the testimony, appellant admitted his presence with the girl alleged to have been raped. It does not occur to us that the court was required to charge on aggravated assault. The testimony of prosecutrix shows that the unquestioned purpose of appellant was to have carnal intercourse with her, and that his efforts were directed to accomplish that purpose. He denies that he made the attempt at all. The evidence did not require the court to charge on impotency.

Appellant criticises the charge of the court in other respects, and also the verdict of the jury, but we do not deem it necessary to discuss said criticisms, as they appear to be of a frivolous character. There being no error in the record, the judgment is affirmed.

Affirmed.