
    SHOCKLEY v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    1. Rape (§ 2) — Attempts—Assault with Intent.
    The offense of attempt to rape denounced by Pen. Code 1911, art. 1070, is distinct and separate from the offense of assault to commit rape denounced by article 1029.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 2; Dec. Dig. § 2.]
    2. Rape_ (§ 34) — Attempt—Indictment.
    An indictment alleging that accused made an assault upon a woman with the intent by force, threats, and fraud, without her consent, to commit rape upon her, by then and there attempting to ravish her, charges the offense of assault with intent to commit rape and not an attempt to commit -rape, notwithstanding the unnecessary allegations charging an attempt.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 37-41; Dec. Dig. § 34.]
    3. Indictment and Infoemation (§ 119)— SURPLUSAGE.
    Where an indictment clearly charged the offense of assault with intent to commit rape, the inclusion of unnecessary allegations charging an attempt does not render it uncertain or subject to motion to quash as they can be disregarded as surplusage.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 311-314; Dec. Dig. § 119.]
    4. Indictment and Infoemation (§ 190)— Conviction — Indictments.
    Where the indictment only charged an assault with intent to commit rape, a conviction of the distinct offense of attempt to rape cannot stand, and the charge should submit only the offense denounced by the indictment.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 596-603; Dec. Dig. § 190.]
    Appeal from District' Court, Limestone County; H. B. Daviss, Judge.
    Robert Shockley was convicted, of an attempt to rape, and he appeals.
    Reversed and remanded.
    Downs & Webb and Tirey & Tirey, all of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P. J.

Appellant was convicted of an attempt to rape, and his punishment fixed at ,two years in the penitentiary.

The indictment is in two counts. The first, after the necessary preliminary allegations, is that appellant “in and upon Estelle Shockley, a woman, did make an assault with the intent then and there by force, threats, and fraud, and without the consent of the said Estelle Shockley, to commit rape in and upon her (the said Estelle Shockley) by then and there attempting by force, threat, and fraud to rape, ravish, and have carnal knowledge of the said Estelle Shockley without her consent.” Likewise the second count is that appellant “did then and there unlawfully make and commit an assault in in and upon the person of Estelle Shockley, a woman, and did then and there by force, threats, and fraud attempt to rape, ravish, and have carnal knowledge of the said Estelle Shockley without her consent and against her will.”

It is the well-established law of this state that an attempt to commit rape provided for by article 1070, P. 0., is an entirely separate and distinct offense from an assault with intent to commit rape prescribed by article 1029, P. G. Fowler v. State, 148 S. W. 576, and cases cited.

We think it clear that both counts of this indictment unquestionably allege an assault with intent to commit rape and not an attempt to commit rape. See the form for an indictment for an assault with intent to commit rape given by Judge White in section 1050 of his Ann. !P. O., and Judge Willson’s form 478 (4th Ed.) p. 249. For the form of an indictment charging an- attempt to commit rape, see Judge White’s form in section 1117 in his Ann. P. C., and Judge Willson’s form 479, p. 250. While there are unnecessary allegations in the first count, we think it clearly charges an assault with intent to commit rape and not an attempt. It would, of course, have been better to have left out the unnecessary allegations in the first count, but including them in the count does not render it uncertain or bad so as to require that it be quashed. The court did not, therefore, err in overruling appellant’s motion to quash the indictment or either count thereof.

It is also the well-established law of this state and needs no citation of the authorities that no conviction for one offense can stand when there is no indictment therefor but when the indictment is for an entirely separate and distinct offense. In- this case the court, by his charge, submitted only the question of an attempt to rape and excluded by his charge an assault with intent to rape. This must necessarily result in a reversal of the judgment. Appellant raised and urged this point in various ways.

The appellant vigorously insists that the evidence is insufficient to sustain a verdict for an attempt to commit rape. As the case must be reversed, it would be improper for us to discuss the evidence, but the question of whether or not the evidence is sufficient to sustain a conviction is a question of law, and we are clearly of the opinion that the evidence in this case was sufficient to sustain in a conviction for an attempt to rape.

The appellant has many complaints to various portions of the charge of the court. One is that the court erred in stating that the indictment charged an attempt to rape. This, of course, was good under the indictment, as shown above. If the ease is tried again, under the indictment as it now stands, then of course the court must not submit the question of an attempt to rape at all, but instead must give the proper charge under an assault with intent to rape. If another indictment is found charging both an assault with intent to' rape and an attempt to rape, and the evidence justifies, of course both questions should be submitted to the jury.

As the case must be reversed, as shown above, it is unnecessary to pass upon any other question in the ease. For the error pointed out, the" judgment is reversed, and the cause remanded.  