This conviction was for an assault with intent to rape. As presented by the facts, an issue in the case was the intention of the appellant: Did he intend to have carnal knowledge of Katie Ford by force or with her consent?
The indictment alleges that the assault to rape was by force, threats and fraud. Threats and fraud are eliminated from the case because there is no proof of either. The State’s case, then, is an assault with intent to rape by force, and to warrant conviction the evidence must show force, and this force must be of a certain character, viz: “Such as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties, and other circumstances of the case.” (Article 539, Penal Code.) This article constitutes a part of the definition of rape or assault to rape when force is relied on for conviction. Make this provision a component part of article 538, Penal Code, and we would have this definition of rape: Rape is the carnal knowledge of a woman without her consent obtained by such force as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties and the other circumstances of the case.
An assault with intent to commit rape is constituted by an assault or assault and battery with intent to have carnal knowledge of the female by the use of such force as might reasonably *336be supposed sufficient to overcome resistance, talcing into consideration the relative strength of the parties and other circumstances of the case. To be guilty of this offense the accused must have intended to accomplish his purpose by the use of this character of force. This proposition is absolutely correct; for, if his intention falls short of this, it would be impossible for him to be guilty of an assault with intent to rape. Because we have seen (threats and fraud not being in the case) that to constitute rape such force must be actually used. Therefore the conclusion is inevitable that, to be guilty of an assault with intent to rape, the accused must have intended to use such force; it being impossible" for him to intend to rape without intending to do that which constitutes rape. These propositions are self-evident, demonstrating their inherent infallibility. The authorities are harmonious on this question. Mr. Bishop says: ‘ ‘An attempt is committed only when there is a specific intent to do a particular criminal thing, which intent imparts a special culpability to the act performed toward the doing. It can not be founded on mere general malevolence. When we say a man attempted to do a thing, we mean that he intended to do, specifically, it, and proceeded a certain way in the doing. The intent in the mind covers the thing in full; the act covers it only in part.” [Sec. 731, 1 Bishop’s Criminal Law.)
And the same author, in section 731, says: “The offender’s purpose must be to commit an entire substantive crime; as, if the alleged offense is an assault with intent to commit rape, he must, to be guilty, have meant to use force, should it be necessary, to overcome the woman’s will.”
And again, in section 745, Mr. Bishop says: “There must, in the words of Cockburn, C. J., ‘be an attempt which, if successful, constitutes the full offense.’ There can be no doubt of the soundness of this doctrine. We have seen that, in law, a man does not intend to commit a particular offense if the act he intends would not, when fully performed, constitute such offense ”
The conclusion from all the authorities is that nothing short of the specific intent to commit the substantive offense will answer. And in rape, and in assault with intent to commit rape, the party can not be said to intend to commit the substantive offense unless he uses or intends to use all such force as is necessary to overcome all resistance. And unless the jury are so charged, the charge will fail to inform them as to what is required to constitute the substantive crime.
*337In rape under the circumstances all resistance must be overcome. In assaults to rape the accused must intend to overcome all resistance, and in passing upon the question as to whether the accused, in either rape or assault with intent to rape, did in rape, or intended to use in assault to rape, such force, relative strength of the parties, and all other circumstances must be looked to. In the substantive offense, rape, such force must be used. In the intended offense such force must have been intended; and if such force was intended, it will matter not that the accused did not have the ability to overcome resistance in fact. The assault, with intent by force (that force defined in article 529, Penal Code), to have carnal knowledge of the woman, is the test; and if these exist and concur the offense is complete. Just what facts and circumstances are sufficient to show an intention to resort to such force can never be enumerated; each case must depend upon its own circumstances.
The court below failed to define force. This should have been done, because article 529 is a part of the definition of rape, and for this reason enters into and constitutes one of the elements of assault with intent to rape.
The judgment is reversed and the cause remanded for another trial,