This case comes before us on motion for rehearing. I concurred in the original opinion affirming this case. There are some expressions in the opinion, however, to which I do not yield my assent. I believe that in an assault with intent to rape on a person under 15 years of age, with her consent, there must be force used, and the same character of force used as in an assault and battery. The element of consent vel non, however, is not an essential feature of an assault. For a full discussions of my views on this subject, see the dissenting opinion in Hardin v. State, 39 Texas Criminal Reports, 426. I quote from that opinion as follows: "In an assault with intent to rape, the same character of force must be used as is used in the crime of rape. This force must be applicable to an assault and battery and such as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties and all the other circumstances of the case. The doing of any violence to the person of another, with intent to injure (even the laying of one's hands upon the person with such intent), is, under our law, an assault and battery. The intent here is to have carnal intercourse with the child; consequently, to injure her. The completed crime, all concede, would be rape, under our statute; but it is claimed that, because the child consents that the carnal intercourse should take place, none of the incipient stages, short of the consummated act, would an assault, no matter how much violence was used, short of the consummated act of intercourse. This doctrine, to my mind, is not only unsound, but is dangerous. Of course, there must be force used, and the same kind of force as is used in an assault or an assault and battery; and this must be sufficient to overcome resistance, taking into consideration the relative strength of the parties and other circumstances of the case. Now, what other circumstances of the case? Evidently that the assaulting party was a strong, vigorous man, and that the prosecutrix was a helpless child, ignorant, having no mind as to enormity of the offense, and incapable of yielding her consent. Under such circumstances, I insist that when an adult male person takes hold of a child, and lays her down, pulls up her clothes, gets on top of her, and is making preparation to penetrate her female organ with his male organ, and is interrupted before the accomplishment, of his purpose, he is guilty of an assault with intent to rape. The acts indicated are all acts of force, — the same character of force used in an assault and battery, — and constitute on the part of the assailant, all of the elements of an assault and battery; and the fact that she yielded her assent is immaterial, as she could not consent to the assault on her." From this it will be seen that, according to my view, an indictment would be vicious which did not allege some character of force used on a girl under age. The State requires the same character of force necessary to constitute an assault and battery, and so I hold that an allegation in the indictment of an assault *Page 684 is a sufficient, charge of force, and a sufficient proof of this force consists in the physical force used in attempting to copulate with the child. There must be sufficient physical force used, in connection with the other circumstances of the case, to establish beyond a reasonable doubt the purpose of appellant to have carnal intercourse with the child. Our statute makes the completed act rape; and I only follow in the wake of the authorities when hold that an attempt to rape, where some physical force is shown, and the evidence also shows that the defendant has the ulterior purpose to have carnal knowledge of the child, although with her consent, is an assault with intent to rape. I quote from 1 McClain, Criminal Law, section 464, which is also cited in the Hardin Case, supra, as follows "But where, as is the rule in most States, the connection with a female child under the age of consent is considered as rape, it is almost universally held that an attempt to have such connection is an assault with intent to commit rape, the consent of the child being immaterial. In such a case, according to other authorities, the doctrine that a child under the age of consent can not give a valid assent to an act of intercourse is applicable also to the assault," — citing People v. McDonald, 9 Mich. 150; Fizell v. State,25 Wis. 364; State v. Meinhart, 73 Mo., 562; State v. Wheat,63 Vt. 673, 22 Atl. Rep., 720; Davis v. State, 31 Nob., 247, 47 N.W. Rep., 854; Murphy v. State, 120 Ind. 115, 22 N.E. Rep., 106; State v. Newton, 44 Iowa 45; Territory v. Keyes,. 5 Dak., 244, 38 N.W. Rep., 440; State v. Johnston, 76 N.C. 209; Glover v. Com., 86 Va. 382, 10 S.E. Rep., 420; McKinney v. State,29 Fla. 565, 10 South. Rep., 732. To these I add State v. West,39 Minn. 321, N.W. Rep., 249; Hays v. People, 1 Hill, 351. The indictment charges an assault, and, in my view, that is a sufficient charge of the force used. The evidence is not before us, and, of course, we are unable to state the proof on this subject. We can only assume that it established the allegations of the indictment.
Appellant, in his motion for new trial, again raises the question as to the admissibility of the testimony of Mrs. McClure, the mother of the injured female, as to what the child told her immediately after the alleged outrage. The bill shows that Mrs. McClure was within a few feet of where the outrage was being perpetrated. The child came out of the room crying, and her mother went to her and asked her what was the matter, and she replied that "George [defendant] got her to go into his room by telling her he wanted to show her a pretty, and that he unbuttoned her panties, and unbottoned his pants, and took out a black thing and hurt her." The objection urged to this is that it was hearsay. The court doubtless admitted it as part of the res gestae. Appellant insists that the testimony was not admissible, because it was a statement of a child not competent to testify in the case, and cites us to a number of authorities in support of his proposition, among others, to Holst v. State, 23 Texas Crim. App., 1; Reddick v. State, 35 Tex. Crim. 463, And these authorities bear out the proposition that a witness may be corroborated in her testimony that, recently after the *Page 685 Commission of the offense, she made a statement to the effect that she had been outraged, but that she can not, be permitted to give the particulars of the transaction. This is good law, but is not applicable in this case. The prosecutrix, it appears from the bill, did not testify at all; but her immediate outery, made in the presence of appellant, and, immediately after he made the assault, was introduced in evidence. This is res gestae, and was not introduced as a corroborative statement of the prosecutrix. Nor was it necessary that she should have been qualified as a witness before her expressions made at the time of the commission of the offense, or immediately thereafter, were introducable in evidence. Besides this, even if conceded that the testimony was improperly admitted, yet, in the absence of a statement of facts, it would be impossible to determine that the testimony was of a prejudicial character. The evidence of appellant's guilt, aside from this, may have been of an overwhelming character.
We do not deem it necessary to discuss other matters assigned in motion for rehearing. Notwithstanding the able argument of counsel for appellant, I see no reason to set aside the former decision, and I concur in overruling the motion for rehearing.
Motion overruled.
DAVIDSON, Presiding Judge, absent.