This is an appeal from a conviction in the court below for assault with intent to commit rape.
In the ninth paragraph of the charge of the court to the jury, the]’’ were instructed that, “When an injury is caused by violence to the person the intent to injure is presumed, and it rests *572with the person inflicting the injury to show the accident or innocent intention. The injury intended, which raises the presumption referred to in this paragraph, may be either bodily pain, constraint, a sense of shame, or other disagreeable emotions of the mind; but from such assault, no specific intent to have carnal knowledge in a manner to constitute rape is presumed by law, but such intent must appear from the evidence.”
In Thomas’s case, 16 Texas Court of Appeals, 535, which was an appeal from a conviction for assault with intent to rape, where a somewhat similar charge was given, this court says: “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 the defendant committed the assault, and that he committed it with the specific intent of raping the person of the assaulted.”
Again, the court charges the jury: “If you believe from the evidence beyond a reasonable doubt that, in the county of Mc-Lennan, and State of Texas, on the, or about the twenty-fourth day of March, 1886, the defendant did then and there unlawfully and feloniously use, or attempt to use unlawful violence upon the person of said Maggie Schuster, or did then and there make any threatening gesture showing in itself, or by words accompanying it, an immediate intention, coupled with an ability to use unlawful violence upon said Maggie Schuster, without her consent, by force or threats, as force and threats have been herein defined, and that said Maggie Schuster was then and there a female, you will find the defendant guilty of an assault with intent to commit rape as charged in the indictment, and assess his punishment at confinement in the penitentiary not less than two nor more than seven years; and, unless you so believe, you will find the defendant not guilty of the offense.” This charge was erroneous in that, in effect, it told the jury that the offense of assault with intent to commit rape could be established by proof of threats, whereas such offense cannot be established by proof of threats, but only on proof of force, or attempted force. The offense of an attempt to commit rape may, it is true, be sustained on proof of threats, but an assault with intent to commit rape can not. The offense of an attempt to commit rape may be predicated upon force, threats, or fraud; but threats or fraud have no part in an assault with intent to commit rape, which must be the result of force or attempted force *573alone. In other words, where it is attempted by threats or fraud, such as are spoken of in the statutory definition of the offense, and such terms are defined in connection with the offense by Articles 528, 530, and 531, Penal Code, an indictment will lie alone for an attempt to commit rape; but if force is an element in the attempted commission of rape, then, indeed, resort may be had to the statute of assault with the intent to commit the offense. (Art. 503, Penal Code.)
Opinion delivered June 23, 1886.“ An assault with intent to commit any other offense is constituted by the existence of the facts. which brings the offense within the definition of an assault, coupled with an intention to commit such other offense.” (Penal Code, Art. 506.)
A person can not be convicted of an attempt to rape under an indictment for assault with intent to rape. (Brown v. The State, 7 Texas Ct. App., 569.) It may be that, under the charge of the court as above quoted, the jury have been misled in to finding appellant guilty upon a state of facts which would alone be applicable to establish the offense of an attempt to rape.
For these errors in the charge of the court to the jury, the judgment is reversed and the cause remanded.
Reversed and remanded.