Briеfly put, the state’s case, as made out by the testimony of its.chief witness, Miss Beanie Rhodes, whom we will term the proseсutrix, was substantially as follows: Appellant drove the car in which he was riding up alongside the prosecutrix, who was walking in thе town of Opp, and invited her to ride. After she demurred, on the ground. *555 that the distance was short, that she was only going to her bоarding place, etc., and upon appellant’s insistence, she accepted the invitation, got into his еar, and was driven by and beyond her boarding place; appellant stating, in answer to her protest that she must get out, did not want to go on, etc., that he was only going a short distance out of town, to Hickory Grove, to “see a fellow.” When Hickory Grove was reached, upon prosecutrix’s demand that appellant stop and let her go bаck, he replied that the “fellow” lived just a little further on, and kept driving. He turned off the main highway, went some distance, and turned again, and, when he reached a place where it seemed that no people “ever travelled that road,” he stopped his ear, shut off the engine, and demanded, in colloquial language, that would not look well in print, that prosecutrix allow him to have sexuai intercourse with her, accompanying his demand with a physical аssault upon her body which could have had no other purpose than the accomplishment of his announcеd desire. Upon prosecutrix’s vigorous resistance, and her “hollering and crying,” and two boys being observed upon a neighboring hill, appellant desisted temporarily, but commanded prosecutrix, on penalty of death at his hands, to “gеt back on the car” (out of which she had been “pushed” by appellant), and announced to her that he was gоing to take her to “Jackson Woods,” and that, if she “would-n’t give up” (meaning, necessarily, let him have intercourse with her), hе would kill her. Appellant drove, with prosecutrix in the car, some further distance to a point where the road they were on came into the Florala-Opp highway. Instead of turning the ear into the highway in the direction of Opp, whеre prosecutrix lived, he turned it, over the strenuous objections and physical efforts of prosecutrix, into the highwаy in the direction of Florala, which was also in the direction of “Jackson Woods,” where he had told prosecutrix he was going to take her. Once fairly in said high-way, with the car directed as just stated, appellant speeded uр his ear, whereupon prosecutrix leaped from same, and received distinct injuries to her person.
Appellant’s testimony contained a denial of the statements of prosecutrix tending to prove the allegations of the indictment.
The jury trying the case found appellant guilty of the offense of “assault * * * with intent to * * * ravish” (Code 1923, § 3303), and he wаs given a sentence to serve imprisonment in the penitentiary for a term of not less than ten, nor more than twelve, years. It has been said by the Supreme Court of our state that, “on a charge of assault with intent to commit rapе, the evidenee, to be sufficient to justify the conviction, should show such acts and conduct on the part of the аccused as would leave no reasonable doubt of his intention to gratify his lustful desire against the consent of the fеmale and notwithstanding resistance on her part.” And that “this principle [the one contained in the quotation next аbove] is well supported by our own decisions, and we accept it as the law.” Pumphrey v. State,
Applying the principle оf law, above, to the evidence in this case, as shown by the hill of exceptions, it is obvious that the question of guilt vel nоn of appellant of the offense charged in the indictment was properly left to the jury for decision.
We think, and hold, that all that took place between appellant and prosecutrix from the time the stop was made on the road described as the one where nobody “ever.travelled” to the time that prosecutrix leаped from appellant’s car was a part of one continuous transaction-^-a part of the “assault” charged in the indictment — and that there was no error in the action of the trial court in refusing to require the state to “elect” as to which of the “two” assaults claimed to be shown by the evidence it would proceed upon fоr a conviction. Similarly, the trial court properly admitted evidence of the transactions along the wholе ride of appellant and prosecutrix between the times, or points, mentioned.
Appellant having brought out testimony of the signing by prosecutrix of a certain “statement” favorable to, and put in evidence by,'him, it was, of coursе, permissible for the state to bring out fully the circumstances under which prosecutrix’s signature was obtained to said statеment. But this-right did not, and could not, extend to the point that the state should have been allowed to introduce in evidence the record of the conviction of appellant’s father for contempt of court, even if it was shown that his conviction grew out of matters related to, or connected with, prosecutrix’s signing said statement. Such evidence, as concerns appellant, was res inter alios acta, and entirely inadmissible. Needless to remark, it must have been highly prejudicial, and for its admission the judgment must be reversed.
The written charges refused to appellаnt were each manifestly, and obviously, refused without error. They will not be discussed seriatim.
For the error pointed out, the judgment is reversed, and the cause remanded.
Reversed and remanded.