
    Willie Mays v. The State.
    No. 3809.
    Decided November 10, 1915.
    Assault to Bape — Newly Discovered Evidence.
    Where the alleged newly discovered evidence was not material, the conviction, in the absence of a statement of facts and bill of exceptions, must be affirmed.
    Appeal from the Criminal District Court of Dallas. Tried below before the Hon. W. L. Crawford.
    Appeal from a conviction of assault with intent to rape; penalty, five years confinement in the penitentiary.
    The opinion states the ease.
    No brief on file for appellant.
    
      G. G. McDonald, Assistant Attorney General, for the State.
   DAVIDSON, Judge.

Appellant was convicted of assault to rape, his punishment being assessed at five years confinement in the penitentiary.

There is nothing in the record that requires revision. There is neither a statement of facts nor bill of exceptions forwarded to this court. There is an affidavit of newly discovered testimony, but it is very indefinite and hardly tangible from any viewpoint, and especially so in. the absence of the evidence. It shows that Dr. Gilbert made such affidavit in effect that he examined the alleged injured girl, who was under fifteen years of age, within forty-eight hours of the time of the alleged assault, and found no bruises or anything that indicated rape about her private parts. Dr. Gilbert testified on the trial, and it is so manifested by the motion for new trial, but even if he had not, the' jury only having convicted appellant of assault to rape, the fact there were no bruises about her person would be of very small value. The assault may have occurred without ever having injured her private parts.

As the record is presented the judgment will be affirmed, and it is. accordingly so ordered.

Affirmed.  