
    Elmer McGary Clinton v. The State.
    No. 1944.
    Decided June 28, 1912.
    Assault to Rape—Sufficiency of the Evidence—Identity of Defendant.
    Where, upon trial of assault to rape, the defendant was sufficiently identified as the party committing the assault, and the other facts were sufficiently proved, the conviction was sustained.
    Appeal from the District Court of El Paso. Tried below before the Hon. James R. Harper.
    Appeal from a conviction of assault with intent to rape; penalty, ten years imprisonment in the penitentiary. .
    The opinion states the case.
    
      George Estes, for appellant.
    —On question of identity of defendant and insufficiency of evidence: Donoghue v. State, 79 S. W. Rep., 309; Adkins v. State, 65 S. W. Rep., 924; Kee v. State, 65 S. W. Rep., 517; Annett v. State, 51 S. W. Rep., 385; Dockery v. State, 34 S. W. Rep., 281; Ellenberg v. State, 35 S. W. Rep., 889.
    
      G. E. Lane, Assistant Attorney-General, for the State.
   HARPER, Judge.

—Appellant was convicted of an assault to rape on a girl only nine years of age, and prosecutes this appeal from the judgment of conviction.

The only ground relied on by appellant is, that he claims the testimony is insufficient t'o sustain the conviction. Francis Foster, the little injured girl, describes the man, the way he was dressed, and the kind of wagon he was driving. She says the man who wronged her had on a pair of blue overalls. It is shown that in the attempt to have carnal intercourse with the girl she was given a loathsome disease —gonorrhoea. a While she would not swear positively t'o defendant being the man, yet, she said he looked like the man. Her sister Martha, who was with her, positively identifies defendant as the man, and also describes the way he was dressed, and the wagon he was driving. At the examining trial, when defendant was bound over to the grand jury, defendant having dressed in a different way, and having on no overalls, and his brother being there dressed in blue overalls, Martha first picked out the brother as the man, but later identified defendant. The kind of clothing the girls say that were worn by the person assaulting Francis were found in defendant’s room and proven to belong to him. The girls say the • man who assaulted the prosecuting witness was driving a one-horse beer wagon, saying “it was a big red wagon, with a seat, and had soda water in the back; the wagon had a bird on it on both sides; had a square cover on top.” They said it was a wagon in which they carried beer and soda water. Mr. Gould testifies that at the time of this occurence defendant was one of their drivers, and the beer wagons hear the Anheuser-Busch emblem, which is an eagle. That defendant was driving a one-horse wagon. It was shown by other witnesses that there were three wagons being run, one driven by defendant’s brother, and one by a Mexican, but' the wagons driven by them were two-horse wagons, and appellant was driving the only one-horse wagon of that description, and both girls are positive that the man who drove the one-horse wagon was the man who attempted to ravish Francis.

This being the testimony the jury was authorized to return the verdict they did, and the judgment is affirmed.

Affirmed.  