delivered the opinion of the court.
The appellant ivas convicted of an assault with intent to rape, and sentenced to the penitentiary. The indictment was draivn under section 1359, Code of 1906 (Hemingway’s Code, section 1096), which provides that—
“Every person who shall be convicted of an assault with intent to forcibly ravish any female of previous chaste character shall be punished by imprisonment in the penitentiary for life, or for such shorter time as may be fixed by the jury.”
At the trial the prosecutrix testified in part as follows:
“Q. Just tell exactly what he did. A. He wrapped both his legs around mine. He threw me down on the floor and fell on top of me and was wrestling around there with me about a half an hour, trying to get my clothes up. The only thing that prevented him from doing what he wanted to do I had on my bloomers and he didn’t know how to get into them.
“Q. What were you doing when he was trying to get into your bloomers? A. I caught ahold of his hand and tried to keep him from getting into them.”
The testimony of the prosecutrix was corroborated by other evidence in the case, but the state offered no proof to show that she was “of previous chaste character;” and the court instructed the jury orally that the district attorney was correct in stating to the jury that the previous *742chaste character of the prosecutrix was not in issue. This oral instruction to the jury by the court told the jury, in effect, that the character of the prosecutrix was presumed to be chaste, or at least that the burden was not upon the state to show" that it was chaste. This was fatal error as to the burden of proof, necessitating a reversal. We omit passing on the question as to error in charging the jury orally. We have said enough for reversal without deciding this point.
Under the indictment in this case previous chaste character of the female is an essential ingredient of the crime, is alleged in the indictment, and must be proved by the state. The failure to charge it, or after having charged it, as here, failure to prove it, is error. The authorities throughout the United States are practically unanimous in holding this view. But we should be constrained to so hold under the very-language of the statute, even though such conclusion was not supported by the great weight of authority in other jurisdictions.
Reversed and remanded.