ON NOTION FOR REHEARING. Appellant moves for a rehearing on the ground that the evidence is insufficient to sustain the charge. It is shown by the evidence that the two witnesses who corroborated the testimony of Mrs. Volmer, the party on whom the assault was made, lived in a house only thirty feet from the place where the assault was committed; and the windows were open, it being in July. It is further shown that Mrs. Volmer went to live in appellant's house and to be supported by him. That he was an unmarried man, living alone in his house. That on the third night after her arrival he had a talk with her, and told her he was coming to her room. She told him he had better not; that she would cut him. That they talked about it half an hour, and she retired. Appellant went to her room, and in the struggle that ensued, Mrs. Volmer, finding him too strong for her, hallooed to the old negro living next door, and appellant went out of the room, and sat on the piazza until arrested. While the evidence clearly shows an aggravated assault, we are inclined to believe, after a more thorough examination of the evidence, that appellant did not intend to commit a rape upon Mrs. Volmer. Appellant seems to be a man in humble circumstances and surroundings, and with perhaps *Page 67 a not high ideal of female virtue; and the fact that a widow with her child should come to live with him, having no personal claim upon him, way have led him to suppose that she would yield to his desires if he was sufficiently persistent. When he went to her room on the third night it was with the knowledge that the said room was situate so close to his neighbors that any noise could be heard, and that, if Mrs. Volmer was unwilling, she could summon assistance at once. Had appellant attempted to prevent her from crying out, or had the relative situation of the parties been different, a very different question would have been presented. But in the case at bar the parties were of the same social condition; were friends or old acquaintances; that before he went to her room he gave her notice that he was coming, which is very unusual in rape cases; and it further appears that the struggle was carried on sometime in silence, and that appellant desisted as soon as Mrs. Volmer called aloud. Under these facts we can not affirm the judgment and say appellant intended to commit a rape. Rehearing granted, and judgment reversed, and cause remanded.
Reversed and remanded.
Judges all present and concurring.