1. To authorize a conviction of the offense of assault with intent to rape, it devolves upon the State to prove satisfactorily such specific intent. That particular intent, no other, will make this offense. Thus an assault with intent to have an improper connection with a woman, but without the use of force, and not without the consent of the woman, would not be an assault with intent to rape. (Pefferling v. The State, 40 Texas, 486; Curry v. The State, 4 Texas Ct. App., 574)
In explaining to the jury the law of assault and assault and battery, the learned judge in one paragraph of his charge says: “Any unlawful violence upon the person of another with intent to injure such person is a battery, and where violence is actually committed upon the person of another, no matter how slight, it rests with the person inflicting the injury to show the accident or innocent intention.” This portion of the charge is assigned as error, and was made a ground of defendant’s motion for new trial.
Whilst the paragraph is in almost the exact words of the Code (Penal Code, Art. 485), and in the abstract is unquestionably correct, still we think it was error to give it in this case. The burden was upon the State to show, beyond a reasonable doubt, that defendant committed the assault, and that he committed it with the specific intent of raping the person assaulted. He might have committed the assault and injury with some other intent than that of rape, and if so, certainly he could not be convicted of this offense because he failed to show that his other intention was an innocent one. Suppose he assaulted the girl with intent to persuade her to have carnal intercourse with him, but with no intent to force her to such carnal intercourse; he would not be guilty of an assault with intent to rape, and yet he *540would be unable to show that he committed the assault with innocent intention. This charge instructed the jury that it devolved upon the defendant to show his innocent intention. His innocent intention of what? Of persuading, or of forcing the girl to have carnal intercourse with him? Considering the charge as a whole, we understand that it only devolved upon the defendant to show his innocent intention as to the rape in order to relieve him of this charge, but we very much doubt whether the jury so understood the charge. It is quite probable, we think, that they understood it to devolve upon the defendant the burden of proving an innocent intention of committing any offense or wrong upon the girl.
But, however it may have been understood by the jury, we think it was wrong to give it, because it shifted the burden of proof from the State to the defendant upon an issue, the affirmative of which the State was bound to prove beyond a reasonable doubt. There are instances where it is proper to thus shift the burden of proof, and where it would be proper to instruct the jury in this manner; but this case does not present such an instance. (Jones v. The State, 13 Texas Ct. App., 1; Curry v. The State, 4 Texas Ct. App., 574.) We think this error in the charge was calculated to mislead the jury to the prejudice of defendant’s rights, and it is therefore such error as demands a reversal of the judgment. In all other respects the charge of the learned judge is a clear, forcible and correct exposition of the law of the case.
2. Considering the whole evidence as presented by the record, the case, to our minds, is a singular one, if the defendant’s intention was to commit a rape. We think the evidence is unsatisfactory as to such being his intention. In view of the meagreness of the evidence tending to establish this specific intent, and of the alleged newly discovered evidence, we think the court should have granted defendant a new trial.
The judgment is reversed and the cause is remanded.
Reversed and remanded.-
Opinion delivered June 14, 1884.