The defendant entered the house “soon after dark,” as the witness expressed it, where the father and mother and three daughters were. There was but one room to the house. No violence was used, excepting removing the bed clothes and putting his hand on the person of the woman. She immediately cried out, and defendant fled.
Under these facts, a refusal to give the charge requested was equivalent to refusing to allow the jury to consider any other intention than that of ravishing the person touched. Such an intention must exist, and the jury must so find, before they can render a verdict of guilty. All that the defendant did are, facts which go to show the intention. The jury had the right, and it was their duty to consider those acts. We do not mean to say that, with the charge as requested, the jury should have acquitted the defendant or found him guilty of a less *81offense. Rut the question of defendant’s desisting and fleeing the house at once, on the first appearance of resistance, is certainly a matter that should have been left to the jury for what it was worth. The rejection of the request by the Court operated as a denial to the defendant of the right to have all he did considered by the jury in determining the question of intention.
If the defendant did, in fact, intend forcibly to know a female, carnally, and against her will, and the effort be made to accomplish his purpose, the mere desisting from further effort, on account of resistance, inability to overcome the resistance, or from fear, does not relieve him from the guilt of an assault with intent to rape: Lewis vs. The State, 35 Ala., 380; 4 Leigh’s (Va.) R., 648; 7 C. & P., 318. But the whole question of intention, and all the facts that throw light upon it, should be submitted fully to those who alone can decide it.
Judgment reversed.