
    PIERCE v. STATE.
    (No. 11675.)
    Court of Criminal Appeals of Texas.
    April 11, 1928.
    Rape <⅜=353(4) — Evidence not showing intention to gratify passion notwithstanding prose-cutrix’s resistance held insufficient to sustain conviction for assault with intent to rape.
    Evidence not showing that defendant intended to gratify his passion on the person of the prosecutrix at all events and notwithstanding resistance on- her part held not sufficient to sustain convictign for assault with intent to commit rape.
    Commissioners’ Decision.
    Appeal from District Court, Brazos County ; W. C. Davis, Judge.
    Wesley Pierce was convicted of assault with intent to rape, and he appeals.
    Reversed and remanded.
    J. G. Minkert, of Bryan, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is assault with intent to rape; the punishment confinement in the penitentiary for 20 years.

Appellant challenges the sufficiency of the evidence. The state’s testimony showed that prosecutrix, Sanaida Ovalle, had bruises and scratches on her arm which appeared to have been caused by the finger nails of some person. Some of the state’s witnesses who were near the scene of the transaction testified that they heard prosecutrix scream. Touching the immediate transaction, prosecutrix testified as follows:

“I was washing at the creek, and had on a big bonnet, and had my head down washing, when this man came to me and asked me did I want to make some money, and grabbed me by the arm. That’s the man there that did that. I recognized him as being the man that came there and grabbed me. When he grabbed me, he asked me if I wanted to make some money. I hollered and jerked loose and ran, I don’t know how long he had hold of me; I ran away. Yes; I screamed very loud. I did not hear anybody answer me. I ran to the hill an'd met Mr. Sausares and the lady, and told them the negro grabbed me by the arm. No; I did not see Wps-ley Pierce, this man here, any more. When I jerked loose from him, I ran from the creek to the hill. No; that was not the direction of my home. X was going in the direction of where the people were working. I did not see the defendant any more that day. The marks he left on me have now faded. The marks he made on me were scratches.”

When prosecutrix jerked away from appellant and fled, he got on his horse and rode away.

We quote from Vinsen v. State, 102 Tex. Cr. R. 235, 277 S. W. 644, as follows;

“The authorities in this state are one way to the effect that, in order to convict the defendant on a charge of assault to commit rape, the evidence should not only show an assault, but that the defendant intended to gratify his passion on the person of the woman, and that he intended to do so at all events, notwithstanding any resistance on her part.”

While the evidence was sufficient to support a conviction for an,aggravated assault, the words and acts of appellant, measured by the rules of law, were insufficient to show that appellant intended to gratify his passion on .the person of prosecutrix, and that he intended to do so at all events, notwithstanding any resistance on her part.

Believing that the evidence is insufficient to support the conviction, the judgment is reversed, .and the cause remanded.

PER CURIAM. The foregoing ppinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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