
    ROBAT v. STATE.
    (No. 6892.)
    (Court of Criminal Appeals of Texas.
    April 12, 1922.)
    1. Rape <§=>53(4)— Conviction of assault with intent held not supported by evidence.
    Evidence held insufficient t® support a conviction of assault with intent to rape by force, where it did not show that defendant made an assault with the specific intent to use such force as would be reasonably necessary to overcome resistance under the circumstances.
    2. Rape <§==>53(3) — Intent must he established beyond possibility in prosecution for assault with intent.
    Specific intent to commit rape must be established beyond a mere possibility in a prosecution for assault with intent.
    3. Rape <§=>53 (2) — Atrocious conduct held not proof of assault with intent to rape.
    Evidence that defendant’s oondudt was atrocious and merited punishment is not such proof as will authorize a conviction of assault with intent to rape.
    Appeal from District Court, Orange County; V. H. Stark, Judge.
    Oscar Robat was convicted of assault with intent to rape, and he appeals.
    Reversed and remanded.
    C. W. Howth, of Beaumont, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Upon a conviction of assault with intent to rape, appellant is condemned to confinement in the penitentiary for a period of 15 years.

Mrs. Wortman, a lady 48 years of age, is the subject of the alleged assault. While walking on the road, she met the appellant, and after passing, he spoke to her. From her testimony, we quote the following:

“I turned my face towards him, and he hadn’t taken his eyes off of me since he came— called me. He fixed his eyes at my face, and never batted them. I turned my face. He had one hand in readiness to grab me, and had the other hand about his pocket. When he says, ‘Old Miss,’ I turned my face, thinking he wanted a job. He says: ‘How about getting a piece?’ I says: ‘What did you say?’ He repeated it. I says: ‘Negro, I am not afraid of you; I am protected. There is a white man on the shelled road that will protect me.’ He looked down towards the shelled road. He says: ‘Who? Where?’ I says: ‘He stepped just behind a clump of bushes; come go with me; I will show him to you.’ He says: T am not going up there where there is any white man.’ Isays: ‘Yes, you are; if you don’t want to take my word for it, you come go with me.’ He made off through the woods.”

The lady, on meeting friends, showed indication of excitement and distress on account of the encounter.

The appellant, a negro boy, about 23 years of age, was apprehended and whipped. ■ Testifying admitted seeing the lady, but denied any assault or insulting words or conduct. The occurrence took place about 5 o’clock in the afternoon. It was charged that the assault was to rape by force.

To sustain the state’s case, it must appear from the evidence beyond a reasonable doubt that the appellant made an assault with intent to have carnal knowledge of the prosecutrix by the use of such force as might reasonably be necessary to overcome resistance, taking into consideration the relative strength of the parties and the surrounding circumstances. It is essential that a specific intent to commit rape be established by the testimony, and it must go beyond the mere possibility of such intent. Branch’s Ann. Tex. Penal Code, §§ 1700, 1701, and cases listed. Illustrating the application of this rule, there will be found in Vernon’s Texas Crim. Statutes, vol. 1, p. 607, note 15, numerous cases in which the evidence has been held insufficient to support the conviction. Oases upon a similar state of facts are found in Dina v. State, 46 Tex. Cr. R. 402, 78 S. W. 229; Ross v. State (Tex. Cr. App.) 78 S. W. 503. See, also, Barnes v. State, 88 Tex. Cr. R. 501, 228 S. W. 225; Armstead v. State, 89 Tex. Cr. R. 477, 232 S. W. 519; Collins v. State, 52 Tex. Cr. R. 457, 107 S. W. 852.

The fact that the conduct attributed to the appellant was atrocious and merited punishment cannot take the place of proof establishing the elements of an assault with intent to rape. This court is not justified in sanctioning a conviction where the evidence falls short of the requirements contemplated by the statute defining the offense. Dockery v. State, 35 Tex. Cr. R. 489, 34 S. W. 281.

Deeming the facts revealed insufficient to support the conviction of assault with intent to rape, the judgment is reversed, and the cause remanded. 
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