Webster

Appellant was convicted of an assault with intent to commit rape. He appeals from the judgment and order denying his motion for a new trial.

1. It is first insisted that the evidence was insufficient to support the verdict, but we cannot agree with this contention. The question as to the specific intent with which appellant did the acts proven against him was a matter entirely for the jury to pass upon under the evidence, and by that evidence the jury were fully justified in finding the intent as charged in the information.

2. The prosecutrix in this case took the stand and testified that she was only twelve years of age, and then related the occurrences which took place between her and the appellant, upon which this information is based. Upon cross-examination she was asked if she did not consent to all that was done by appellant, and an objection was sustained to the question, upon the ground that her consent was immaterial, the trial court at the *383 time stating: “ I snail instruct the jury she cannot consent, and, that being so, it is of no legal consequence.” When the time arrived to charge the jury as to the law of the case the court made good its previous statement by…