Appellant was convicted of an attempt to commit rape, and given two years in the penitentiary.
Omitting formal portions, the charging part of the indictment is as follows, to wit: That Gus Taylor * * * "did then and there unlawfully make an assault in and upon the person of one Pearl Neylond, a female under the age of 15 years, and not being the wife of him, the said Gus Taylor, did then and there attempt to ravish and have carnal knowledge of the said Pearl Neylond, against the peace and dignity of the State."
Motion to quash the indictment was overruled. It will be observed that this indictment charges the assault was made upon the person of Pearl Neylond, and by means of this assault an attempt was made to ravish and have carnal knowledge of her. Under the authorities this seems to be sufficient to charge an assault with intent to commit rape. *Page 155 The use of the word "attempt" is equivalent to charging an intent. 4 Texas Crim. App., 574; 7 Texas Crim. App., 342; 30 S.W. Rep., 1064; 38 Tex. 383. Of course this is not a sufficient charge upon which to predicate the offense of attempt to rape, because the very definition under article 640, Penal Code, excludes in an attempt to rape the question of assault. As an indictment for attempt to rape it would not be sufficient; but under the authorities above it sufficiently charges an assault with intent to commit rape.
The court in its charge defined an assault with intent to commit rape; and then submits alone the issue for the determination of the jury of attempt to commit the crime of rape. Under an indictment charging an assault to rape an accused can not be convicted of an attempt to rape. White's Ann. Penal Code, sec. 1052. Nor does the evidence support the crime of attempt to rape. Appellant was the stepfather of the girl; she was under 15 years of age. On the night of the alleged crime he took prosecutrix and her little sister from home along the streets of Beaumont and made them drunk, prosecutrix being very drunk. He finally carried them near the bank of the river, and while the younger sister was upon the bank pleading for the defendant to carry her and prosecutrix home he seized and took prosecutrix down the river bank near the edge of the water, against her will and over her protest; and when found there a little later, the girl was on her back, with her clothes up, and he lying by her side with his pants entirely unbuttoned. And the facts show beyond any question that she had at some time been having sexual intercourse, and the evidence indicates that it occurred with appellant upon this particular occasion. This testimony, if true, would show rather rape or an assault to rape. If he carried the girl forcibly over her protest and had intercourse with her, it was rape. If he did not accomplish it, it would be an assault to rape. The assault upon the girl, under the circumstances detailed, carried the case beyond mere preparation, and terminated it in the higher offense of assault to rape, if not in the consummated offense itself. So the testimony does not sustain the conviction of an attempt to rape. Warren v. State,38 Tex. Crim. 152; Waire v. State, 3 Texas Ct. Rep., 307.
For the errors discussed, the judgment is reversed and the cause remanded.
Reversed and remanded. *Page 156