
    John Wilson v. The State.
    No. 18875.
    Delivered March 17, 1937.
    The opinion states the case.
    
      Arthur C. Gonzalez, of Del Rio, for appellant.
    
      Lloyd W. Davidson, State’s Attorney, of Austin, for the State.
   HAWKINS, Judge.

— Conviction is for assault with intent to rape, punishment being 15 years in the penitentiary.

The assault was alleged to have been made upon a colored girl about 13 years old. Appellant entered a plea of guilty. The State’s evidence upon said plea showed that appellant entered a house at night where the girl was sleeping, took her from the bed and carried her from the house, and made repeated efforts to have intercourse with her. She resisted, and screamed, and finally got away from him. Appellant’s only defense was that he was drunk and did not remember what he did. The court submitted the issue of drunkenness in mitigation of the punishment. The evidence supports the judgment.

From a misunderstanding of words apparently prosecutrix at one time in her testimony said that appellant penetrated her person, but it is clear from her testimony as a whole that she did not claim that appellant succeeded in effecting penetration. However, attorney for appellant requested the court to charge the jury that appellant could not be convicted of assault to rape if he penetrated her person. The court properly refused the requested instruction. Subd. 9, Art. 753, C. C. P., provides as follows:

“A verdict is not contrary to the law and evidence, within the meaning of this provision, where the defendant is found guilty of an offense of inferior grade to, but of the same nature as, the offense proved.”

The judgment is affirmed.

Affirmed.  