1. — Aggravated Assault — Assault to Rape — Indictment.
Where in a prosecution for assault with intent to rape the indictment charged that the prosecutrix was not the wife of defendant, and charged the other ingredients of the offense, the same was sufficient.
2. — Same — Continuance.
Where upon trial for assault with intent to rape the testimony of the absent witnesses set out in the motion for continuance was not material, because the same did not contravene the State's case, there was no error in overruling the motion.
BROOKS, JUDGE.
Appellant was convicted of an aggravated assault and his punishment assessed at a fine of $500 and two years in the county jail.
Appellant filed a motion to quash the indictment. The charging part of the indictment is, as follows: "Did then and there unlawfully make an assault, with the intent then and there to commit rape in and upon Lonnie Hutton, a woman, by then and there attempting, by force, threats and fraud, to ravish and have carnal knowledge of the said Lonnie Hutton, without her consent, the said Lonnie Hutton, then and there not being the wife of him, the said Ben Westerman."
Appellant relies upon the Franklin case, 34 Tex. Crim. 203; and the Payne case, 38 Tex.Crim. Rep. as authority for his motion. The indictment here does allege that the prosecutrix is not the wife of appellant. In those two cases, the indictment did not so allege. The cases are not in point and we hold the indictment is sufficient.
Appellant insists that the court erred in refusing to grant him a continuance for the want of the testimony of defendant's wife and one Blackburn. That he expected to prove by his wife that prosecutrix stayed at the home of appellant with her husband some days after the alleged assault; that his wife discovered nothing unusual in the manner of prosecutrix, and that he wanted the testimony of Blackburn to prove by him that Emmett Hutton's (husband of prosecuting witness) object in having him prosecuted was to collect a debt from appellant. The record before us shows that the prosecutrix's husband was not placed upon the stand in the trial, and this testimony would be entirely immaterial. Furthermore, the prosecutrix herself, testified in the trial that she and her husband were living at the home of appellant at the time of the assault, and she continued to stay there a week afterwards without making any disclosure of the defendant's conduct towards her, while she so remained. Therefore, the testimony of appellant's wife would not be material, because no fact was proposed to be proved by her, other than that admitted by the State. In other words, her testimony did not contravene the State's case in any particular.
There are no other questions in this record that require review at our hands. The judgment is in all things affirmed.
Affirmed.
[Rehearing denied June 24, 1908. — Reporter.]