Under an indictment for rape, the defendant may be convicted either of that offence, or of an assault with intent to rape, or of an attempt to commit rape. Penal Code, art. 535 ; Code Cr. Proc., art. 714, sects. 2, 13. But it does not follow that upon an indictment for an assault with intent to rape he may be convicted for an attempt.
An assault with intent to rape includes also an aggravated assault and a simple assault or assault and battery, but not an attempt. There is no such offence as an attempt to commit an assault with intent to rape. White v. The State, 22 Texas, 608. The charge of the court is therefore erroneous, and the indictment will not support the verdict and judgment.
The judgment is reversed and the cause remanded,
Reversed and remanded.