The indictment charges the appellant with an assault with intent to rape one Zona Bean, who is alleged to be a female girl.
The judge who presided at the trial gave to the jury, among other instructions, the following: “To constitute an assault to commit rape in this case, the purpose and intent must have been to have carnal knowledge of Zona Bean by force. If his intent was to try to accomplish his purpose by coarse, vulgar familiarity, and the same produced ■ shame and disgust, but force to have carnal knowledge was not used or intended, the offense would be an aggravated assault and battery.” This-was substantially a correct charge and applicable to the facts testified to on the trial. A charge similar in character, though couched in language somewhat variant, was asked by the defendant and refused by the court.
The fourth ground in the motion for a new trial is as follows: “Because the verdict was contrary to the evidence, there being no testimony elicited upon the trial of this cause tending to show that any force was used upon the part of this defendant in attempting to commit the crime with which he is charged in the indictment. ” The *199court overruled the motion for a new trial. (The Reporter will state the inculpatory evidence.) The testimony was not sufficient to show an assault with intent to commit rape, as charged in the indictment. The court erred in refusing a new trial on the fourth ground of the motion, and for this error the judgment must be reversed and, a new trial awarded. Other errors complained of need not be noticed for the reason that they are not likely to occur on another trial.
For the error herein set out, the judgment will be reversed and the cause remanded. Saddler v. State, ante, p. 194.
Reversed and remanded.