6 S.W. 190


CARROLL
v.
STATE.


Court of Appeals of Texas.


November 23, 1887.

Appeal from district court, Freestone county; S. R. FROST, Judge.

The defendant was convicted for an assault with intent to rape, and the penalty 
assessed was a term of two years in the penitentiary.

Bell & Steele, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

An assault with intent to rape is constituted by the existence of facts which 
bring the offense within the definition of an assault, coupled with an 
intention to commit rape. Pen. Code, art. 506. To constitute an assault there 
must be the use of some unlawful violence upon the person of another with intent
to injure him or her, or some threatening gesture showing in itself, or by 
words accompanying it, an immediate intention to commit a battery. Pen. Code, 
art. 484; Jones v. State, 18 Tex. App. 485. Assault with intent to commit rape 
can only be committed by means of force or attempted force. Burney v. State, 
21 Tex. App. 565, 1 S. W. Rep. 458; 22 Tex. App. 529, 3 S. W. Rep. 753'> 
Taylor's Case, 22 Tex. App. 529, 3 S. W. Rep. 753; 23 Tex. App. 204, 5 S. W. 
Rep. 652'> Milton's Case, 23 Tex. App. 204, 5 S. W. Rep. 652. There must be 
some sort of force or attempted force, or the case is not made out. In 
Dibrell's Case, the defendant was pulling the bedclothes off the injured female 
when she awoke, and gave the alarm, and this court held in that case that the 
force was sufficiently proved. 3 Tex. App. 456. 18 Tex. App. 385'>Johnson's 
Case, 18 Tex. App. 385, the evidence was held insufficient, though the 
prosecutrix swore defendant placed his hand upon her; and 14 Tex. App. 162'>
Peterson's Case, 14 Tex. App. 162, while it was held that the violence used was 
sufficient to constitute an aggravated assault, it did not show an attempt to 
rape. See, also, 11 Tex. App. 116'> Hamilton's Case, 11 Tex. App. 116; 12 Tex. 
App. 196'> Sanford's Case, 12 Tex. App. 196; House v. State, 9 Tex. App. 53. 
In the case before us, even if we concede that appellant was the party in Mrs. 
Livingston's room when she awoke and screamed, still that does not sustain the 
conviction, because he used no force, nor attempted force,—no threatening 
gesture, — simply called her given name, and, when she screamed, fled. Because 
the facts are insufficient to establish an assault with intent to rape, the 
judgment is reversed, and the cause remanded.