Appellant was tried for and convicted of an assault with intent to commit rape. Whilst the evidence before us shows a most wanton, unprovoked and outrageous assault upon the part of appellant, unexplained by any apparent motive, yet it fails to convince us that the motive and intent was to commit a rape. This may have been his intention, but his conduct is not inexplicable upon other hypotheses.
If a party is only held to intend the natural and probable consequences of his acts, then the acts in this instance only establish a case of aggravated assault and battery; for the injured *164female says that whilst he choked and struck her, he “ did not try to throw me down, nor did he try to pull up my clothing.” ¡Nor does she say defendant said anything during the transaction which wo.uld throw any additional light upon his intent. That defendant should be punished, and punished severely, if the testimony be true, no one will gainsay; but he should not be punished for an offense which he has not committed.
The evidence is too uncertain and unsatisfactory to warrant us in permitting this conviction for an assault with intent to rape to stand as a precedent, and the judgment is therefore reversed and the cause remanded. '
Reversed and remanded.
Opinion delivered May 5, 1883.