
    MAYS v. STATE.
    (No. 3809.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1915.)
    Criminal Law <&wkey;945 — Grounds — Newly Discovered Evidence.
    A new trial, after conviction of assault to rape a child under 15 years of age, will not be granted on the ground of newly discovered testimony of a physician, who had examined the child within 48 hours of the time of the alleged assault, and found no bruises about the child’s person, for the assault may have occurred without any injury to the child.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2324-2327, 2336; Dec. Dig. &wkey;3945J
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Willie Mays was convicted of crime, and he appeals.
    Affirmed.
    O. O. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

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 bardly tangible from any viewpoint, and especially so in tbe absence of the evidence. It shows that Dr. Gilbert made such affidavit in effect that he examined the alleged injured girl, who was under 15 years of age, within 48 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 was 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. 
      @=>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     