
    BIRMINGHAM v. STATE.
    (No. 9925.)
    (Court of Criminal Appeals of Texas.
    Feb. 24, 1926.)
    Rape &wkey;s53(2) — Evidence held not to identify accused with sufficient certainty to warrant .. conviction for assault to rápe.
    Pfoof of similarity of tracks and testimony as to conduct of man-trailing dogs held insufficient to sustain conviction of accused not otherwise identified as assailant for assault with intent to commit rape.
    Commissioner’s Decision.
    Appeal from District Court, Cass County; Hugh Carney, Judge.
    Das Birmingham was convicted of án assault with intent to commit rape, and he appeals.
    Reversed and remanded. •
    Dineoln & Barkman, of Texarkana, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry. Jr., Asst. State’s Atty., of Tyler, for the State.
   BEIRRY, J.

The offense is assault with intent to commit rape, and the punishment is 20 years in the penitentiary. The prosecu-trix is a 14 year old white girl and the. appellant is a 30 year old negro. The prosecutrix testified that she was sleeping in an adjoining room to that of her, father and mother, while across the hall other .members of the family were, sleeping; that the-first thing that attracted her attention was when she heard something, which she thought was a cat, and that something pulled on the cover; that she did not holler then, hut that somebody placed his hand on her hip, and then she hollered and called her mother; that she did not scream, but just called her in an ordinary voice; that when the cover was pulled she put out her hand to the side of the bed to see if she could feel anything, and she couldn’t feel anything, and then she called twice, and when she' called the second time she heard something walking, and kind of running, and then she screamed. Thereafter she heard a sound like somebody stepping, going' out from her room into the dining room, and from there she heard him leave the house and heard the door slam.

This is the extent of the state’s testimony as to what happened in the room. By proof of similarity of tracks and by very unsatisfactory testimony as to the conduct of man-trailing dogs, the state sought to identify this appellant as the prowler in the house. If it be conceded that his identity was established by the testimony, it still remains true that, under the authorities in this state, the testimony is insufficient to show that the appellant was guilty of the offense of assault with intent to commit rape. Cromeans v. State, 129 S. W. 1129, 59 Tex. Cr. R. 611; Hays v. State, 217 S. W. 938, 86 Tex. Cr. R. 469; Mason v. State, 83 S. W. 6S9, 47 Tex. Cr. R. 403; Vinsen v. State (Tex. C. App.) 277 S. W. 644. Selby v. State (No. 9846) 281 S. W. 561, delivered February 10, 1926.

The state, through her attorney, conc'edes that the evidence in this case is insufficient to support the verdict, and we think the state’s position in the matter is correct; hence the judgment of the trial court is reversed, and the cause remanded. 
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