This case was affirmed at a previous day of this term, and now comes before us on motion for rehearing made by appellant. The question is now raised for the first time that the indictment is defective. The charging part of said indictment is as follows: "The defendant, with force and arms, then and there in and upon Bertha Thompson, a woman, did make an assault with intent then and there to commit the offense of rape upon the said Bertha Thompson, by then and there attempting to have carnal knowledge of her, said Bertha Thompson, the said Bertha Thompson being then and there under the age of fifteen years." Appellant insists that said indictment is defective, because it does not allege that the said Bertha Thompson was not the wife of the appellant. In the definition of rape of a female under the age of fifteen years, as a part of the definition entering into said offense, is the fact that the parties were not man and wife. This question was thoroughly discussed in Rice v. State, ante p. 36. This is a case of an assault with intent to rape. The female upon whom the assault is charged was alleged to be under the age of fifteen years at the time. As in rape, so an assault with intent to rape can be committed on such a person with or without her consent, and the only force required is such force as may be used in the effort of penetration. *Page 244 See, Allen v. State, 36 Tex.Crim. Rep.. The same authority holds that any attempt to make an entry upon a child under the age of consent, with the ulterior purpose on the part of defendant to force his male organ into the female organ of the prosecutrix, is sufficient to constitute the offense of assault with intent to rape, regardless of the conent of the prosecutrix. It follows that all of the constituent elements that go to make up rape, except penetration, must be alleged and proved in an assault with intent to rape, when the charge is an assault with such intent upon the person of a female under fifteen years of age, and that it must be charged in the indictment, where the alleged female is under fifteen years of age, that she was not the wife of the defendant. This question was not raised before in this case, and so not passed upon. Because the indictment is defective, the motion for a rehearing is granted, and the judgment is reversed, and the cause ordered dismissed.
Rehearing Granted and Reversed and Ordered Dismissed.