The following statement taken from the brief of the State’s counsel is substantially correct: “The State’s testimony shows that on May 11, 1905, prosecutrix, aged 10 years, was going to market, and while passing the repair shop of appellant was called by him, and went in to see what he wanted, and when she got to the door he grabbed her, and carried her inside the shop, shut the door, put her on a bed, and made an attempt to penetrate her person. When he caught hold of her, she hollered and he put his hand over her mouth. She told him to get off of her and leave her alone, and when she hollered he held her down, and put his hand over her mouth. When he got np he gave her a dime. Delia Austin testified that she heard the prosecutrix crying or grunting in the shop, and heard appellant ask her, ‘what in hell she was grunting about’; he said that somebody on the outside would hear them, then prosecutrix said appellant hurt her, and witness heard appellant reply that he hadn’t got it into her yeti She also heard appellant tell her to stand np, and then tell her to lie down, and from prosecutrix groaning, so low, witness concluded that his hand was over her mouth. Witness in order to see and hear, got down on the ground by his shop. It was also shown that a discharge was noticed on the legs of prosecutrix as she came out of the shop. On the day after, prosecutrix was examined by a physician, who testified that there was slight irritation of the private parts of prosecutrix, showing that some degree of force had been used upon her, in an effort at penetration.

“Appellant admitted the presence of the little girl in his shop, and that the door was shut; he says that the door might have swung shut, or he may have shut it; that all that occurred was that the child asked him for a dime, and that they talked awhile, and that he gave her a dime, and she went on out; that he never had her on a bed at all, and made no attempt to assault her.”

The defendant as a witness denied any assault upon the girl, his theory being that it was a plot or trick invented by the mother of the girl and others; that there was bad feeling between him and them; that they charged him with the assault at a time he was not in the .shop where it was alleged it occurred; that he took drugs to excite' his animal passion, etc.; that the neighbors did not hear the outcry of the girl, etc.; that some of the State’s witnesses were prostitutes, etc.

The indictment charged that J. Herbert, etc., on or about, etc., with force and arms, then and there in and upon Inez Timmins, a female, then and there under the age of 15 years, did make an assault with intent, then and there, to commit the offense of rape, upon the said Inez Timmins, by then and .there attempting, by force, threat and fraud to ravish and have carnal knowledge of the said Inez Timmins, the said Inez Timmins not then and there being the wife of the said J. Herbert, alias, etc. Against the peace and dignity of the State.

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