
    NASH v. STATE.
    (No. 9567.)
    (Court of Criminal Appeals of Texas.
    Dec. 2, 1925.
    Rehearing Denied April 14, 1926.)
    1. Rape <&wkey;>40(l).
    Exclusion of testimony that on former occasions others had kissed prosecutrix held not error.
    On Motion for Rehearing.
    2. Rape <&wkey;53(4).
    Evidence of intent of accused to accomplish intercourse regardless of consent or resistance held to warrant conviction of assault to rape.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Henry Nash was convicted of assault with intent to rape, and he appeals.
    Affirmed.
    J. M. Mathis, John M. Cobb, Harry C. Ger-lach, and Henry E. Kahn, all of Houston, for; appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

The appellant was convicted in the criminal district court of Harris county of the offense of assault with intent to rape, and his punishment assessed at seven years in the penitentiary.

Appellant complains of the action of the-court, in bill of exception No. 1, in permit-, ting the state to ask leading questions to the prosecuting witness. We are of the opinion that this bill shows no harmful error.

In bills of exceptions 6, 7, 8, and 9 complaint is made to the action of the court in refusing to permit the appellant to show by certain witnesses that on a former occasion that they had kissed the prosecutrix, and in refusing to permit the appellant to impeach her pertaining to said matters. This court has held against appellant’s contention in the case of Wood v. State, on rehearing, 189 S. W. 474, 80 Tex. Cr. Rep. 408.

Appellant strenuously urges that the evidence is insufficient to support the conviction and show he intended to accomplish the act of intercourse with prosecutrix regardless of her consent or resistance. We are unable to agree with this contention. The jury took the testimony of the prosecutrix and the other state’s witnesses in preference to the testimony of the appellant, which, if believed, showed clearly an assault with intent to rape. Tlie prosecutrix testified that appellant, over her pro,test, had driven her out of the city of Houston, off the main highway some distance, turned out the lights on his automobile, and on her refusal to acquiesce to his desires, he choked her and told her that he was going to satisfy his desires regardless of her screams; that he threatened to knock her head off if she did hollo when he observed other parties approaching, who had been attracted to the scene by her screams. She testified that she had been resisting him in a fierce struggle for nearly an hour and screaming every chance she had, and was practically exhausted when the other state’s witnesses came and got her and carried her back to Houston. Her testimony was supported by the state’s witnesses who hurried to the scene and testified to seeing appellant having one hand around her neck and the other hand on her throat, and to seeing the bruises on the prosecutrix’s throat, her torn clothing, her stockings down, and hearing appellant tell her, “If you holloa when that car passes, I will break your damned neck”; that when prosecutrix got .loose from him she was highly excited, showed to be exhausted, and could hardly walk around; that when appellant objected to the witnesses taking prosecutrix away, she implored them, “For God’s sake, take me home.” The evidence shows that after a long struggle, ap.pellant was still vigorously pursuing his efforts until state’s witnesses Hall and Olark appeared upon the scene. Under the testimony as related by the witnesses in this ease, we are not authorized to say that the jury was unwarranted in finding the defendant guilty as charged. In Branch’s Ann. Penal Code, § 1699, p. 965, it is stated:

“If the facts show that it was owing to no lack of effort on the part of the accused that he did not accomplish his purpose to rape the woman, and that it was only on account of her effective resistance and speed that she escaped, a conviction approved by the trial judge, whose duty it is to set it aside if not satisfied therewith. will not be disturbed on the facts on appeal” — citing many authorities.

Finding no error in the record, we are of the opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

PER CURIAM.

The foregoing opinion of the Commission .of Appeals has been examined by the judges of the Court of Criminal Appeals and approved, by the court. ■

On Motion for Rehearing.

L/ATTIMORE, J.

We have reviewed all the bills of exception and all the testimony in view of appellant’s contention in his motion, but are constrained to believe that proper disposition was made of this ease in our original opinion. The learned trial judge was entirely justified under the authorities in rejecting the testimony sought to be introduced by appellant, complaint of which appears in the bills of exception referred to and discussed on original presentation. We regard the testimony in the record as amply sufficient to have justified the infliction of a .graver penalty than this jury saw fit to fix. The state’s testimony strongly makes out a case of a man who took a young girl out at night, assaulted her, bruised her body, choked her, tore her clothing off, cursed and threatened her, and when othef parties, attracted by her screams, approached the place, according to their testimony, he had his hands upon her. throat trying to stifle her outcries and was heard by them to tell her that if she holloed he would break her damned neck; These parties who rescued her from him testified to her exhausted condition, the bruises and stripes on her body and throat, her torn clothing, the disheveled condition of most of her garments, and that they heard her screams and his threats. The evidence does not even suggest a less intention on his part than to force her to have criminal connection with him.

The motion for rehearing will be overruled. 
      (g=jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     