An assault with intent to commit rape is constituted by the existence of facts which bring the offense within the definition of an assault, coupled with an intention to commit rape. (Penal Code, art. 506.)
*368Opinion delivered November 23, 1887.To constitute an assault there must be the use of some unlawful violence upon the person of another, with intent to injure him or her, or some threatening gesture showing itself, or by words accompanying it, an immediate intention to commit a battery. (Penal Code, art. 484: Jones v. The State, 18 Texas Ct. App., 485.)
Assault with intent to commit rape can only be committed by means of ,force or attempted force. (Burney v. The State, 21 Texas Ct. App., 565; Taylor v. The State, 22 Texas Ct. App., 529; Milton v. The State, 23 Texas Ct. App., 204.) There must be some sort of force or attempted force used, or the offense is not made outs
In Dibrell’s case the defendant was pulling the bed clothes off the injured female when she awoke and gave the alarm, and this court held in that case that the force was sufficiently proven. (3 Texas Ct. App., 74.) In Johnson’s case (18 Texas Ct. App., 565), the evidence was held insufficient, though the prosecutrix swore defendant placed his hands upon her; and in Peterson’s case (14 Texas Ct. App., 162), whilst it was held that the violence used was sufficient to constitute aggravated assault, it did not show an intent to rape. (See Hamilton v. The State, 11 Texas Ct. App., 116; also, Sandford v. The State, 12 Texas Ct, App., 196; House v. The State, 9 Texas Ct. App., 53.)
In the case before us, even if we concede that appellant was the party in Mrs. Livingstone’s room when she awoke and screamed, still that does not sustain the conviction, because he used no force or attempted force, no threatening gesture, but simply called her given name, and, when she screamed, fled.
Because the facts are insufficient to establish an assault with intent to rape, the judgment is reversed and the cause remanded.
Reversed and remanded.