#### Perkinson v. State.

4302

172 S. W. 2d 18

Opinion delivered June 7, 1943.

G. G. Hardin and David L. Ford, for appellant.

Guy E. Williams, Attorney General, and Earl N. Williams, Assistant Attorney General, for appellee.

Griffin Smith, C. J.

A jury convicted appellant (twenty-six years of age, and married) of assault with intent to rape. The transaction occurred in a taxicab operated by appellant. The prosecuting witness, eighteen years of age, was a passenger. She testified that the cab was driven to a secluded spot where appellant undertook to satisfy his sexual propensities.

The subject of the assault testified to facts which, if true, would constitute the crime alleged in the information. There was corroboration, including uncontradicted evidence that the accusing party called from the cab to a passing motorist, who was accompanied by others. They took the girl home. She immediately pro*978ferrecl charges. Appellant admitted lie endeavored to persuade the prosecuting witness to cooperate in the satisfaction of his desires, and said he thought she had consented.

Pacts are in sharp conflict; hence, it was for the jury to determine where credibility lay. It follows that the first point relied upon for reversal — that testimony is insufficient — fails.

It is next contended that Instruction No. 2, given on the court’s own motion, was erroneous in that there was no testimony upon which it could bo predicated. Inferences to be drawn from the girl’s narration were sufficient, we think, to justify the declaration that “A person can be guilty of assault with intent to rape if he assaults a female with intention of having carnal knowledge of her forcibly and against -her will-, even though after the assault is made, she finally yields to his embraces and consents to the sexual intercourse. Such subsequent yielding and consent, if any, does not mitigate or justify the assault with intent to commit the crime. ’ ’1

Affirmed.

1

Paxton v. State, 108 Ark. 316, 157 S. W. 396.