I do not assent to the proposition that in a prosecution for assault with intent to commit rape, it is essential for the court to charge that the force intended to be used must be 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. Such character of force is necessary to constitute rape by force, and in a prosecution for that offense it is essential that the court should so instruct the jury. (Penal Code, art. 529; Jenkins v. The State, 1 Texas Ct. App., 346; Jones v. The State, 10 Texas Ct. App., 552.) I do not think that article 529 of the Penal Code, defining the force necessary to constitute rape, applies or was intended to apply to an assault with intent to commit rape.
Our code provides that An assault with intent to commit any other offense is constituted by the existence of the facts which'bring the offense within the definition of an assault, coupled with an intention to commit such other offense, as of *338maiming, murder, rape, or robbery.” (Penal Code, art. 506.) This seems to be the view entertained by this court in Carroll v. The State, 24 Texas Ct. App., 366.
Opinion delivered March 9, 1889.According to "my understanding of the statute, if a man assaults a woman with the specific intent to have carnal connection with her by force, against her will, he commits the offense of assault with intent to rape. The assault is the use or attempted use of force, and the intent requisite to constitute the crime is not an intent to use the force contemplated in article 529, supra, or any specific character of force, but is an intent to forcibly and against the will of the woman have carnal connection with her. The force intended to be used by the assaulting party may not be such as might reasonably be supposed would be sufficient to overcome resistance, taking into consideration the relative strength of the parties and other circumstances of the case; yet, if there was an assault, and the assaulting party intended to ravish the woman, or at least to make the attempt to do so, taking the chances of being able to accomplish his design, I think he would be guilty of an assault with intent to rape.
To illustrate: A man meets a woman in daylight in a city on a public street, in the presence of hundreds of people. He is a small, delicate man; she is a large, athletic woman. He assaults her and attempts to throw her down, and the evidence conclusively shows that his intent is to have carnal knowledge of her without her consent. He could not reasonably suppose that he could overcome her resistance or that the people present would allow him to accomplish his design, yet he may unreasonably believe that perchance he can succeed, and may make the effort under such unreasonable belief, willing to take the chances of the venture. Would he be guilty of an assault with intent to rape? I think he would, but, under the opinion of a majority of the court, as I understand it, he would not be guilty of that offense. It is with deference and hesitation that I dissent from the opinion of the court, which opinion, I concede, is supported by authority. My dissent is founded upon articles 503 and 506 of our Penal Code, and with reference to which article 529 has no connection or applicability, in my opinion. I think the charge of the court in this case was unobjectionable and that the conviction should not be set aside upon the ground of the insufficiency of said charge. Reversed and remanded.