This appeal is from a conviction for assault with intent to ravish. The appeal here is on the ground that there is no evidence of an assault. The facts are undisputed and are as follows: The "prosecutrix" was sitting alone on her piazza after dark, when a man (the appellant) approached the house and upon being asked *Page 434 his mission said that he had been sent by the washerwoman of the "prosecutrix" to ask for a loan of fifty cents. The man gave the wrong name. By reason of the false statement he was allowed to approach to within two feet of the prosecutrix and near enough to take the money from her. He made no attempt to take hold of her, but approached near enough to do so. The appellant asked her if her husband was at home and being informed that he was not, asked her to go to her room with him, thereby soliciting carnal intercourse. The prosecutrix said, "Wait a minute." She then slipped into the hall, got the pistol and fired out at him three times. The defendant then ran away.
The appellant claims that inasmuch as he had not reached the stage at which he was to lay hands upon her, there was no assault.
There was evidence (introduced without objection) that the prisoner confessed that he went to the house of the prosecutrix with intent to have carnal intercourse with her. The jury saw the appellant. They saw the prosecutrix. It was their province to say whether the appellant had any reasonable expectation that he could obtain the consent of the prosecutrix. If the appellant intended to have intercourse and had no reasonable expectation that he secure her consent, then the jury had the evidence from which they could infer that the appellant was there in pursuance of his purpose to use force, i. e., to commit rape. The intent is not a crime and unless there was an assault there was no crime.
Appellant relies upon the following authority: Bishop on Criminal Law 23, says: "Assault is an unlawful, physical force, partly or fully put in motion, creating a reasonable apprehension of immediate physical injury to a human being; as raising a cane to strike him, pointing in a threatening manner a loaded gun at him and the like."
The coming within reach of the prosecutrix with intent to carry out his purpose, together with his words showing *Page 435 his intent is the unlawful physical force, partly put in motion which created a reasonable apprehension of immediate physical injury and is evidence sufficient to sustain a verdict of guilty.
This case is a very much stronger case than the State v.Johnson, 84 S.C. 45. In that case the placing of the hands upon the shoulders of the victim was no part of the final struggle and the intent was only an inference from that fact. Here the intent is not an issue and the appellant had proceeded as far by overt act as the prompt and effective resistance of the prosecutrix allowed.
Jackson v. State, 18 S.E. Rep. 132: "When a man, under the incitement of lust and with the intention of gratifying it by force, enters the bedroom of a virtuous woman at a late hour in the night and gets upon the bed in which she is sleeping, within reach of her person, for the purpose of ravishing her, he commits an assault upon her, although he may not actually touch her, being prevented from doing so by her outcry and the intervention of an occupant of the adjoining room."
The State v. Shroyer, 104 No. 441, 24 Am. St. Reps. 344: "It was not necessary, in order to constitute an assault, that actual violence should have been used, to sustain such an indictment" (assault with intent to commit rape), "it is not even necessary that the person of the one upon whom the attempt is intended should be touched. If the intent, with the present means of carrying it into effect existed and preparations therefor have been made the assault is complete."
The State v. Sims, 3 Strob. 137: "To ride a horse so near one as to endanger his person and create a belief in his mind that it was the intention of the rider to ride over him, would be an assault."
"His Honor said to the jury that he did not think the defendant intended to either ride upon the prosecutrix or to strike him, yet he thought if his action and conduct was such *Page 436 as to create the belief in the mind of the prosecutor, that he intended to ride upon or strike him, he would be guilty of an assault."
This conviction was sustained.
Am. Crim. Law (Wharton), sec. 1155: "When the prisoner decoyed a female child into a building for the purpose of ravishing her, and was there detected while standing within a few feet of her in a state of indecent exposure, it was held, that although there was no evidence of his having actually touched her, he was properly convicted of an assault with intent to ravish."
The judgment of this Court should be that the judgment of the Circuit Court be affirmed.
MR. CHIEF JUSTICE GARY concurs.