George Thompson v. The State, 43 Tex. 583

Moore, Associate Justice. The evidence in this case most obviously does not warrant the verdict found by the jury. There is nothing in the facts or circumstances disclosed in the record from which it can be justly inferred that appellant committed an assault with intent to commit rape, (Crim. Code, art. 494,) or that the offense of rape, though not committed, was attempted by the use of force, threats, or fraud. (Crim. Code, arts. 524, 525, 526, 530.) The offense defined in

article 494 is consummated when an assault is made upon a woman with intent and purpose to commit the offense of rape, though the force and violence used in making the assault may not have equaled that required for the commission of the offense. (Crim.

Code, art. 524.) If the assault is made with the unlawful intent the offense is complete, although the offender, from fear, resistance, or other cause, may have abandoned his purpose without resort to the greater force which he designed using, if necessary, to accomplish the intent with which he made the assault, while, to maintain an indictment, under art. 530 it must be shown that there was an attempt to commit a rapé by force, threats, or fraud.

And this force, as defined by the code, u must have been such as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties and other circumstances of the case.” (Crim.

Code, art. 524.) Unquestionably it cannot be said that appellant is shown to have attempted to commit the offense in question by the use of such force as is here indicated; and still less can it be said that he attempted to do so by threats or fraud as also defined in the code. (Arts. 525, 526.) The evidence shows an unwarranted liberty with the person of a female of a gross, wanton, and outrageous character, well calculated to arouse the strongest feelings of shame, mortification, and indignation, which was, therefore, unquestionably an aggravated assault upon her.

But the manner, time, place, and circumstances under which this assault was committed, however wanton and unjustifiable, were not such as justifies the presumption that it was with the intent to accomplish the purpose for which he may have entered the room without consent and by means of force. To support the verdict it is necessary that it should appear that the intent with which the assault was made went to this extent.

The improbability that he could suppose that he -would be able to accomplish such a design, when the slightest outcry would have defeated it, renders it quite improbable that this was his intention. But it is not sufficient to support the verdict that this possibly may have been the purpose and intent with which he made the assault. The burthen was upon the State to show beyond reasonable doubt that such was the fact; and as this was not done, the motion for a new trial should have been granted. The judgment is reversed and the cause remanded. Reversed and remanded.