Appellant was convicted of an attempt to commit a rape upon Belle Beauchamp, and his punishment assessed at seven years in the penitentiary; hence this appeal.
There are two counts in the indictment. The count which charges the rape alleges that Belle Beauchamp was under the age of 15 years. The second count is for assault with intent to rape Belle Beauchamp, it not being alleged that the assaulted party, Belle Beauchamp, was under the age of fifteen years. The assault is alleged to have been made with force, threats, and fraud, and without the consent of Belle Beauchamp. After the testimony was introduced, the court instructed the jury as follows: "Rape is defined by law, among other things, 'as the carnal knowledge of a female under the age of 15 years, other than the wife *Page 162 of the person, with or without her consent, and with or without the use of force, threats, or fraud.' The charge of rape included the offense of an attempt to commit rape. If the jury believe from the evidence beyond a reasonable doubt that Belle Beauchamp was, on the day alleged below, under 15 years of age, then you will not further consider whether or not she was willing and consenting to carnal intercourse with defendant, or whether or not force, threats, or fraud was used by defendant; but if, in addition thereto, you further find, beyond a reasonable doubt, that defendant Dr. R.B. Warren, in the county of Smith, and State of Texas, on the 7th day of March, 1896, and prior to the filing of the indictment herein, did attempt to have carnal knowledge of said Belle Beauchamp, then you will find the defendant guilty of an attempt to commit a rape, and will assess his punishment at confinenient in the penitentiary for any term of years, not less than two." Counsel for appellant requested the court to instruct the jury as follows: "You are further charged, that before you can convict the defendant of an attempt to commit rape you must believe from the evidence, beyond a reasonable doubt, that he sought to have carnal connection with the prosecutrix by the use of force, but not such force as to bring the offense within the definition of an assault with intent to commit rape, as defined in the main charge, and if you should not believe such force was used, then you will acquit the defendant, or find him guilty of aggravated assault, in case you find that the offense, if any, comes within the definition of that offense, as defined in the main charge." This instruction was refused by the court.
Appellant was convicted of an attempt to rape the prosecutrix. Counsel for appellant complains of the charge of the court given, and also insists that the requested instruction should have been given. We must test the charge of the court by the law of the case. At common law a party could be convicted for an attempt to commit a felony, the punishment being fixed either by common law or by act of parliament, graded by the character of the offense attempted. Article 3 of our Penal Code of 1895 provides: "In order that the system of penal laws in force in this State may be complete within itself, and that no system of foreign laws, written or unwritten, may be appealed to, it is declared that no person shall be punished for any act or omission, unless the same is made a penal offense and the penalty affixed, thereto by the written law of this State." Article 1 provides that "the design of enacting this Code is to define in plain language every offense against the laws of this State, and affix to each offense its proper punishment." It has done so. We have no law in this State providing or declaring in these words "that an attempt to commit rape is an offense." If we had such an act, merely declaring that an attempt to commit rape would be an offense, with the punishment affixed thereto, we might then conclude that if a party was guilty of attempting to have carnal knowledge of a girl under 15 years of age, with her consent, that, as the consummated crime would be rape, therefore he would be guilty of an attempt to commit rape. But we have no *Page 163 such act. Therefore appellant must be convicted under the law as we find it written. What is the law? Article 640 provides: "If it appear on the trial of an indictment for rape, that the offense, though not committed, was attempted by the use of any of the means spoken of in articles 634, 635, and 636, but not such as to bring the offense within the definition of an assault with intent to commit rape, the jury may find the defendant guilty of an attempt to commit the offense, and affix the punishment prescribed in article 608," which is "confinement in the penitentiary for any term of years not less than two." Article 640 draws a distinction between an attempt to commit rape and an assault with intent to commit rape. It is not necessary for us in this opinion to point out the difference between the two offenses. Suffice it to saythat the statute makes the difference. Now, to constitute this offense an attempt to rape must be shown; and this attempt must be made by the use of one of the means spoken of in articles 634, 635, and 636. There were no threats or fraud used in this case, and therefore the State was forced to establish the fact that the attempt was made by the use of force — that force defined in article 634. Said article reads as follows: "The definition of 'force' as applicable to assault and battery applies also to the crime of rape, and it must have been such as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength, and all other circumstances of the case." No person in this State can be guilty of an attempt to commit rape, unless the proof shows that an attempt was made by the use of force, and the force intended to be used must be reasonably calculated to overcome resistance, taking into consideration the relative strength of the parties and other circumstances of the case. It must appear that it was reasonably sufficient to overcome resistance. A proper construction of this statute in connection with article 640 is that at the time of the alleged attempt it was the intention of the party to use the same force as would make him guilty of rape, or of assault to commit rape, but in the actual attempt he fell short of the use or application of such force as would bring the offense up to an assault with intent to rape, for when the force used amounts to an assault then it ceases to be a mere attempt, but would be an assault to commit rape; then the two offenses come together; when the attempt ceases, the assault begins and takes its place. And if the force actually used is such as to constitute the offense an assault with intent to commit rape, then it is no longer a mere attempt. The fact that the party was under 15 years of age has nothing to do with this question. To constitute this offense, as we have said, the attempt must be made, and the intention to that character of force above described must also be established by the proof. As we have said above, our statute does not stop by stating that you can punish an attempt to commit rape, but it specifically points out the manner, method, and means which must be intended to be used by the accused in order to constitute this offense. If the statute was general, and did not specifically point out and require that the party must intend to use force, such *Page 164 as is defined in article 634, we might then conclude that what was done by the accused in this case was an attempt to commit rape, because, as we have said above, rape can be accomplished on a girl under 15 years of age with her consent. But our statute is particular in regard to this matter, and requires that the proof must show that the defendant intended to use that particular force which is defined in article 634. To these acts and intentions our Code has affixed a penalty. This offense is called an attempt to commit rape. This offense has been defined and the punishment affixed, and we know of no other attempt to commit rape, except as named in article 640. The charge of the court was radically wrong. It did not require the accused to intend to use any character of force. The law requires that he should intend to use that character of force which was reasonably calculated to overcome resistance. This presupposes that she was not consenting. She could not, at the same time, resist and consent. We are not treating of an assault to rape a girl under the age of 15 years.
Reversed and remanded.
DAVIDSON, Judge, concurs.