Benjamin Sparkman was convicted in the •Circuit Court of Volusia County of assault with intent to commit rape.
*152Eeciting the evidence will serve no useful purpose.
That an assault was made on the girl, is amply established.
It was an extremely indecent assault, and one evincing gross immorality on the part of the plaintiff in error. But not every indecent assault constitutes an assault with intent to commit rape. This was recognized by this court in Rushton v. State, 58 Fla. 94, 50 South. Rep. 486, when it was said ‘1 The sufficiency of the evidence gives us grave concern, and but emphasizes again the need of legislation to punish more severly these indecent assaults that do not quite come up to the definition of assault with intent to commit rape.”
In its strongest aspects the testimony falls far short of what is required in law to establish the crime of assault with intent to commit rape. Dannelly v. State, 80 Fla. 773, 87 South. Rep. 44; Hunter v. State, 29 Fla. 486, 10 South. Rep. 730; Clark v. State, 56 Fla. 46, 47 South. Rep. 481; Rushton v. State, supra; Bell v. State, 61 Fla. 6, 54 South. Rep. 799.
The defendant’s motion for a new trial on the ground that the verdict is not warranted by the evidence should have been granted.
The eleventh assignment of error is based upon the refusal of the court below to give to the jury the following charge:
‘‘A conviction of the crime of assault with intent to commit rape will not be sustained upon proof that the assailant voluntarily desisted before the consummation, without any outside interference and with no unusual resistance on the female’s part.”
*153This instruction is in the exact language of the second headnote of Dannelly v. State, 80 Fla. 773, 87 South. Rep. 44, which was taken from the sixth head note in the case of Rushton v. State, supra.
It was peculiarly applicable to the facts in this case. That was recognized by counsel for the State, who in his argument to the jury said: “Why he stopped, no one will ever know but himself.” That the evidence fails to disclose any reason why he desisted, is thus conceded by counsel for the State, who admits the reason for his desistence was known only to the prisoner himself. His desistence Avas therefore the act of his own volition, and consequently his own voluntary act. Where this appears, the crime of assault with intent to commit rape has not been committed.
The necessity for the instruction that was refused is emphasized in the case of Hunter v. State, supra, in this language: “The gravamen of the offense in an indictment charging an assault with intent to rape is the intent with which the assault was made; and this question of intent throughout the instructions of the court, should be kept prominently before the minds of the jury as being the main subject of their inquiry; and if there be a reasonable doubt as to the intent such doubt necessitates an acquittal.”
The judgment is reversed.
Browne, C. J., and Ellis, J., concur. Whitfield and West, J. J., dissent.