Appellant was convicted of assault to rape, his punishment being assessed at two years' confinement in the penitentiary.
There are some questions raised by bills of exception and on motion for new trial, which we deem unnecessary to discuss in view of the fact that the case will be reversed for want of sufficient evidence to sustain the conviction. Omitting much of the testimony bearing upon the location of the place where the assault is said to have been committed, and coming down to the immediate facts as detailed by the assaulted girl, the record shows as follows: The little girl alleged to have been assaulted was named Lillie Mae Young. She was attending school in the neighborhood where this matter occurred, and *Page 341 usually went in company with other children to the school, walking some distance to reach the school house from her home. On the particular morning in question she was late and the other children had passed on to school before she left home. She says en route to the school she passed the defendant who was at work hoeing potatoes just inside of a fence. That defendant was standing near a hay rake at the time he called her and a little distance from the west end of it. He said to her, "Come here, Lillie Mae, come here." "I turned toward him. He came toward me. He just pulled up my dress, laid his hand on my leg, and asked me what it was. His hand was under my dress. He was on his knees. When he put his hand on my knee I commenced crying. He turned me loose, and I started on to the school house. I went in the road. I traveled slow until I got a good piece, and then I ran the balance of the way. When I got to the school house books had been taken up. He put his hand on my leg under my dress. He turned me loose after I commenced crying. Miss Josie Priddie was hearing the Fourth Grade class when I got to school. It was about half an hour after I got to school before recess. I had a conversation with Miss Josie Priddie at recess. I was out of the school house when I had this conversation. I called her off to one side. When I talked to Miss Priddie I told her what had happened down there. * * * I made a statement that evening to my father and mother when I got home about what had happened to me that day. He put his hand right there, just about my knee, and asked me what that was."
On cross-examination she testified: "Q. You testified in the examining trial? A. Yes, sir. Q. Didn't you testify before on the cross-examination this, `When he put his hand on my knee he asked me what is this?' A. He put his hand up above my knee. Q. Did you say this, `When he put his hand on my knee he asked me what is this. I did not answer him, and he got up and went on, that is all that occurred:' You signed that. Don't you remember that they took down what you said? A. Yes, sir. Q. And you signed your name to it? A. Yes, sir. Q. Did you say, `When he put his hand on my knee he asked me what is this, and I did not answer him and he went on?' A. He stayed on his knees. Q. You went on? Did he say anything to you when you began to cry? A. No, sir. Yes, sir. He said, `Lillie Mae, what is the matter?' Q. Then you turned and went on? A. Yes, sir. Q. He stayed there? A. Yes, sir. Q. He never tried to follow you? A. No, sir. Q. Never said anything more to you? A. No, sir. Q. Never did anything more to you? A. No, sir. Q. Just put his hand on you and said, `Lillie Mae, what is this?' A. Yes. Q. You did not say anything and started to cry, and then he said, `Lillie Mae, what is the matter,' then you turned and walked off. A. Yes, sir. Q. And you said that he never tried to follow you? A. No, sir. Q. That is all that happened then? A. Yes, sir. Q. He never tried to follow you? A. No, *Page 342 sir. Q. He never said anything more to you? A. No, sir. Q. That was all that was said and done? A. Yes, sir."
This is the record as shown by the statement of facts in regard to this transaction. The appellant denied the entire occurrence, and said that he was not at the place designated by the girl, and so far as he was concerned the matter did not occur. Take the matter in its strongest light, discarding the testimony of appellant, this evidence does not show an assault upon the girl with intent to ravish or to have carnal intercourse with her. Cromeans v. State, 59 Tex.Crim. Rep.. Whether the assault upon a woman, which includes a girl, was with the intent to commit rape, depends upon the intent with which the assault was made. Where force is charged, or is a necessary element in the offense of rape or assault to rape, then that assault must be made with the specific intent to have carnal intercourse by force and against and without the consent of the assaulted female. If the girl be under fifteen years of age, unless force is specifically charged in the indictment, it does not enter into the case under the decisions of this court. But whether the assault is made by force or not, in any event that assault must be accompanied by the specific intent to have carnal intercourse with the assaulted female. This is true whether the assault was made under the theory of force, threats or fraud, or on a girl where the consummated offense would be rape with or without consent, and with or without force. There cannot be rape without intercourse, or penetration at least, and there cannot be an assault with intent to commit rape without the specific intent to have carnal intercourse with the assaulted party. It is not every assault upon a girl or woman that constitutes assault with intent to rape or to have intercourse with her. Without the intent to have intercourse the assault would not be of a more serious nature than aggravated assault. To carry it beyond this and constitute it an assault to rape, the specific intent must be combined and be a part of the assault. Whatever else may have been the differences in this court heretofore in regard to these matters, there has not been any question but what the assault must be accompanied by the specific intent to have intercourse. There is nothing in the testimony of this little girl that shows a specific intent to have intercourse with her; on the contrary, her evidence leads to the opposite conclusion. It is unnecessary to review the authorities. The facts do not justify the conviction. Cromeans v. State, 59 Tex.Crim. Rep.. The little girl was assaulted, under her testimony, and it produced in her mind a sense of humiliation or excitement, but the fact that the assault produced in the mind of the female a degree of shame or humiliation does not supply the intent to have intercourse with her. That sense of humiliation and shame would enter into the charge of assault, but it does not supply or furnish evidence of intent to commit rape. There must be shown beyond a reasonable doubt a specific intent to have intercourse to justify this conviction. *Page 343 This conviction, if sustained, obliterates all distinctions between assaults and assaults to commit rape.
This was written as the opinion in the case, but my brethren have thought it correct to affirm the judgment. I sign this as a dissent.
[Rehearing denied November 27, 1912. — Reporter.]