This case was reversed at a former term of this court, and the opinion in same will be found in 52 Tex.Crim. Rep.; 107 S.W. Rep., 547. In said former opinion we inadvertently stated that the issue of aggravated assault should have been given in the charge. We find in this record that appellant again complains of the refusal of the court to charge upon aggravated assault. We hold that the former opinion, in stating that the issue of aggravated assault was in the case, is erroneous, and it follows that the court did not err in refusing to charge on same in this case.
Appellant was charged with the offense of burglary, with intent to commit rape. The court, in his main charge, gave the jury the following: "You are instructed that you must find and believe from the *Page 24 evidence, beyond a reasonable doubt, first, that the defendant broke and entered the house alleged; and second, that he, the defendant, had the specific intent to unlawfully have carnal knowledge by force, and without her consent, of said Ida Barnett, and as same has been fully defined and described herein, and if you should find that the defendant did enter said house, but you should find, or have a reasonable doubt, that the purpose and intent of the defendant was, when he did so enter said house, if he did so, break and enter said house, was for any other purpose and intent, then find him not guilty." The court had previously defined rape and a breaking which constituted burglary in his charge, then followed same with the above quoted charge. The evidence in the case shows that appellant entered the house and was rubbing the leg or thigh of prosecutrix, and immediately upon her making an outcry he fled. The evidence further shows that prosecutrix' two daughters, aged 19 and 17 respectively, were in the room with her. Now, the question raised is, whether the court erred in not charging upon aggravated assault. It was not necessary, as stated above, to so charge. The court told the jury that if appellant had any other intent than rape, or if they had a reasonable doubt as to his having intent to rape, to find him not guilty. This was all that appellant could ask, and if it was not with the specific intent to rape it could not be burglary, since burglary was predicated upon that intent in the indictment. The only question for us to decide is whether the evidence justified the verdict; that is to say, as to whether the evidence showed a specific intent to rape, or justified the jury in so concluding. We hold that it did. There was nothing to indicate that appellant had any other intent. He stole nothing from the house, and he evidently was attempting to have carnal knowledge of the prosecutrix without her consent. There is nothing in the evidence to suggest that he had any reason on earth to believe he had consent to the illicit relation. He stealthily enters the house at night, and when discovered is making an effort to assault the prosecutrix, and could not have had any other purpose than to commit the crime of rape. A cry is raised by prosecutrix and the appellant flees. We can not say that he did not have the intent to rape. To say so would be doing violence to the facts in this case. Many decisions of this court hold that, on an ordinary indictment charging burglary with intent to steal, although nothing is taken, yet the fact of entering the house at night is evidence of the fact that he intends to steal. In this case we have the evidence going farther, and showing an indecent and outrageous handling of the person of the prosecutrix. The indictment having predicated burglary upon intent to rape, the question for us to decide is whether or not this evidence justifies the verdict of the jury. We have no rule of this court under which we could reverse this case for failure of the court to charge on aggravated assault, but the only rule, as we understand the decisions of this court, would be this: that, if this evidence did not make out, or justify the jury in concluding that *Page 25 appellant had the specific intent to rape, then we could reverse the case for the lack of evidence to sustain the allegation in the indictment; but certainly we have no warrant, in law or reason, for saying that the court should charge on aggravated assault. Appellant does not complain of the above quoted charge. It covers every salient feature of his defense, and tells the jury explicitly that if appellant had no specific intent to rape, or if they had a reasonable doubt thereof, to find him not guilty. Under an indictment for burglary with intent to rape there could never be a prosecution for aggravated assault. Then, on what theory could the court be held to have erred in failing to charge on aggravated assault? This is the complaint of appellant, and not that the evidence is insufficient. We inferentially held that the evidence was sufficient in the former opinion of this court by not declaring that it was not sufficient, and we have no reason to disturb the verdict on the ground that the evidence does not support the allegations in the indictment. It may be suggested that the jury might have concluded that appellant had no specific intent to rape from the sheer presence of prosecutrix' daughters, but this could be readily argued by appellant, and doubtless was properly argued by him, in his address to the jury, and urged as a reason why the jury should not find that he was guilty of burglary with intent to rape, but these isolated facts would not justify us in concluding he had no such specific intent. The charge in all respects submitted the force necessary to constitute rape, as stated above, and properly defined burglary as applicable to the indictment in this case.
There is no other question requiring a review at our hands in this record, and the judgment is in all things affirmed.
Affirmed.
[Rehearing denied April 14, 1909. — Reporter.]