
    SELBY v. STATE.
    (No. 9846.)
    (Court of Criminal Appeals of Texas.
    Feb. 10, 1926.
    State’s Rehearing Denied March 24, 1926.)
    I.Rape <&wkey;53(S).
    To warrant conviction for assault with intent to rape, proof must not only show an assault, but that it was made with specific intent to commit rape.
    2. Rape <&wkey;>53(3).
    Evidence, in prosecution for assault to rape, held, insufficient to show specific intent to rape, authorizing conviction for no greater of-' fense than aggravated assault.
    On Motion for Rehearing.
    3. Rape @=>53(3).
    Evidence, in prosecution for assault to rape, must establish specific intent to rape beyond mere possibility of such intent.
    Appeal from District Court, Bexar County ; W. S. Anderson, Judge.
    Joe Selby was convicted of assault with intent to rape, and he appeals.
    Reversed and remanded.
    M. C. Gonzales, of San Antonio, and O. Ellis, Jr., of Luling, for appellant.
    C. M. Chambers, Dist. Atty., and Lamar Seeligson, Asst. Dist. Atty., both of San Antonio, and Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   MORROW, P. J.

The offense is assault with intent to rape; punishment fixed at confinement in the penitentiary for a period of 15 years. The indictment charges an assault to rape by force.

About two o’clock in the morning, Mrs. Lindsey, the subject of the alleged assault, got in her automobile at her home in order to take her baby, which had been crying for some time, out for a ride; She left her husband at home. Before entering the car, she observed some one on the opposite side of the street, to whom she gave little attention. The person soon disappeared. Prom her testimony, we quote:

“I went on Up the street, and when I got on the corner he ran out to the car, and said, ‘Stop,’ and stuck his gun at me, and I started to go on, and he grabbed the keys out of the car and then he took his gun and held it on me, and says, ‘Move over’ — pushed me over and got behind the steering wheel and he got his gun on me, and says, ‘Shut up, or I will kill .you,’ and as he started he got into the car. I thought that maybe he was going to hold me up, and I held out my hand, and says, T haven’t got anything,’ and he says, ‘Shut up, or I will kill you,’ just that way; and when I took hold of his gun barrel and pushed it away from me I screamed, and the ear turned down Sycamore street, and I held his gun away, and when a car passed I screamed, and these people went along and stopped, and then he got out of the ear', and when he did he knocked me down, and I fell on my baby and skinned her and me all up, and then he ran along up Gonzales street, and he had the keys with him, and we never did find the keys.”

To warrant a conviction, the proof must show not only an assault, but.that-it was made with the specific intent to commit the offense of rape. The evidence shows an assault, but we think there is an absence of proof, either by direct evidence or by the surrounding circumstances, to show that there was a specific intent to rape; that is, to then, by force, have carnal knowledge of the prosecutrix against her will. The assault may have been to rob or kidnap the prose-cutrix, or for some other purpose. The assault was criminal, but the evidence does not reveal the intent of the appellant. The precedents are numerous and uniform to the effect that, to sustain a conviction for an assault to rape, there must be proof of the specific intent. Under the present indictment,' on the evidence adduced, the court should have sustained a verdict of no graver offense than aggravated assault.

The. Judgment is reversed, and the cause remanded.

On Motion for Rehearing.

HAWKINS, J.

The state has filed a motion for rehearing, urging that the evidence authorized the jury’s finding that the assault was made with th.e specific intent to commit the offense of rape, citing in support of its contention Berry v. State, 72 S. W. 170, 44 Tex. Cr. R. 395; Washington v. State, 103 S. W. 879, 51 Tex. Cr. R. 542; Hightower v. State, 143 S. W. 1168, 65 Tex. Cr. R. 323; Love v. State, 150 S. W. 920, 68 Tex. Cr. R. 228; Duckett v. State, 150 S. W. 1177, 68 Tex. Cr. R. 331. The three last cited cases involve assaults upon girls under the age of consent, and, we think, may be distinguished-from the present case on the facts. The Berry and Washington Oases do support the; state’s contention in so far as one fact case can aid in weighing those of another.

It must be borne in mind that it has always been held in assault with intent to rape that the evidence must show not only the assault, but that it it also “essential that a specific intent to rape be established by the evideiiee and that it must go beyond the mere possibility of such intent.” Cotton v. State, 105 S. W. 185, 52 Tex. Cr. R. 55. It must be admitted that in making application of this rule some of the cases are on close lines. In''the opinion in Cotton’s Case will be found a collation of authorities illustrating the principle there announced. In addition may be noted Curry v. State, 4 Tex. App. 574; Dina v. State, 78 S. W. 229, 46 Tex. Cr. R. 402; Robat v. State, 239 S. W. 966, 91 Tex. Cr. R. 468. We commend the zeal of Hon. O. M. Chambers, district attorney, and his assistants in briefing the cases appealed to this court in which prosecutions have been conducted by them. It has been of great aid to the court and to our stpxe’s attorney. In the present case, however, our opiniori does not coincide with theirs.' Applying as best we can the principle last above referred to in the present case, we believe our original opinion reflects a correct conclusion.

The state’s motion for rehearing is overruled. 
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