Appellant was convicted of an attempt to commit burglary, and his punishment assessed at two years confinement in the penitentiary.
Appellant excepted to the action of the court in striking out his plea of former acquittal. He was indicted in this case for an attempt to commit burglary. The plea of former acquittal set up an indictment in two counts, — the first charging him with an assault with intent to rape, and the second charging him with an attempt to commit rape. The plea alleged that it was one and the same transaction for which appellant was then being tried. On motion, the plea was stricken out, and appellant reserved an exception. It has been held that it was competent for the court to strike out a plea of former acquittal where the indictments show that the former acquittal was for a distinct *Page 55 offense from that for which the party was being tried. Wright v. State, 37 Tex.Crim. Rep.; Wheelock v. State (Texas Crim. App.), 38 S.W. Rep., 182. Counsel insists, however, that appellant could have been convicted under the former indictment for an attempt to commit rape, and this would be a bar. The allegation was that it was one and the same transaction, and he refers us to the case of Herera v. State, 35 Texas Criminal Reports, 607. That was a case in which the defendant had been previously convicted for an assault with intent to murder, and had served his time, and was afterwards put on trial for the same transaction on a charge of robbery. We there held that the plea of former conviction for assault with intent to murder, involving the same transaction, was a good plea in bar. But we do not believe it is applicable to this case. An attempt to rape by force, as defined by our statute, requires the same character of force as in an assault, but goes beyond mere preparation, and stops short of the assault itself. This definition was thoroughly discussed in McAdoo v. State, 35 Texas Criminal Reports, 603. Evidently an attempt to commit a rape apprehends that the party is in a situation to make an assault; that is, conceding that an attempt to commit a rape by force is sufficiently defined by the statute, and can be committed at all. An attempt at burglary for the purpose of committing rape does not apprehend that the party is in a situation to commit either an attempt to rape or an assault with intent to commit rape. The charge of an attempt to commit a burglary for the purpose of committing a rape apprehends that the party attempting the burglary must commit it before he can commit the ulterior offense. Though, on the former trial, proof may have been made of the attempted burglary, as part of the res gestae, yet if the case had stopped there, there would have been no proof of an attempt to rape, or of an assault with intent to commit a rape, because the party must make a breach of the house before he could do either. And if, on a former trial, the proof had stopped with an attempted burglary of the house, the court should have instructed an acquittal. These are as much distinct offenses as burglary and theft, or as forgery and uttering a forged instrument, and a conviction or acquittal of the one is not a bar to the prosecution of the other. The court did not err in striking out the plea.
Appellant excepted to the charge of the court because it failed to submit the question of alibi to the jury. It appears that appellant excepted to the charge of the court, as given, for the reason that it failed to charge on alibi. The court informed counsel that if he really desired such a charge, and would prepare it, the court would give it, although the court thought it doubtful whether such a charge was applicable, from the facts proved on this trial. We have examined the record carefully, and in our opinion such a distinct charge was not required. We do not understand that appellant offered any affirmative proof that he was elsewhere at the time of the alleged attempt at burglary, further than that he denied being at the place when it was *Page 56 committed. He was evidently in that vicinity, according to the testimony of his own witnesses. The general charge of the court that they should acquit defendant unless they believed "from the evidence, beyond a reasonable doubt, that defendant did by force attempt to enter the house mentioned in the indictment, and that it was then and there his intention to have carnal knowledge of the said Ella Garrett by force, and without her consent," and the court's charge on reasonable doubt, we think, was sufficient. We have examined the court's charge in connection with the special requested charges, and in our opinion the charge of the court sufficiently covered all the material issues in the case, and none of the requested charges were necessary. No error appearing in the record, the judgment is affirmed.
Affirmed.
[NOTE. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]