
    SCOTT v. STATE.
    (No. 3113.)
    (Court of Criminal Appeals of Texas.
    April 29, 1914.)
    1. Rape .(§ 59) — Assault with Intent — Instructions — Definition of Force.
    In a prosecution for assault with intent to rape a girl under 15 years of age, it was not necessary for the court to define “force” in the charge, since the consent of the girl would be no defense.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 88-100; Dec. Dig. § 59.]
    2. Criminal Daw (§ 678) — Separate Offenses — Election.
    Where it appeared that defendant was separately indicted for assaults with intent to rape a girl under 15 years of age, alleged to have been committed on two different dates, and evidence of both offenses was admitted in the trial on the indictment charging the second offense, in connection with a statement that the state relied on the second offense, the defendant could be convicted only for the second offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1580-1583; Dec. Dig. § 678.]
    3. Criminal Law (§ 783%) — Separate Offenses — Election—Instructions.
    In such a ease, while the evidence of the first offense should not have been stricken, the court should have instructed the jury that the-defendant was not on trial for the offense committed on the former date.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1879, 1986; Dec. Dig. § 7.83%.]
    4. Rape (§ 59) — Assault—Instructions— “Aggravated Assault.”
    In >a prosecution for assault with intent to rape a girl under 15, where the court submitted, the issue of aggravated assault, such assault should have been defined as being, under the-circumstances of the case, the indecent and improper fondling of the person of a female under* 15.
    [Ed. Note. — For other cases, see Rape, Cent. Dig-. §§ 88-100; Dec. Dig.-§ 59.
    
    For other definitions, see Words and Phrases, vol. 1, pp. 270, 271.]
    Appeal from District Court, Grayson County; J. K. Jamison, Special Judge.
    George Scott was convicted of an assault with intent to rape, and he appeals.
    Reversed and remanded.
    Lawson & Cawthon, of Denison, 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-
    
   HARPER, J.

Appellant was prosecuted and convicted of an assault with intent to-rape, and his punishment assessed at 15 years’ confinement in the penitentiary.

The indictment in this case charges the assault to have been committed on or about the 10th day of November, 1913, on Gladys Scon-yers, a girl under 15 years of age. ■

The complaint that the court should have defined “force” and instructed the jury in regard thereto is not applicable to this character of case; for, if the offen'se was committed with the consent of the girl, it would be no defense, for, under the law, she is declared too immature to consent.

But it appears that after the girl had testified to the offense taking place on November 10th, on cross-examination she also testified to appellant having also assaulted her on October 25th, and on that date had given her $2, when the county attorney stated: “Counsel understands there are two eases against the defendant in this matter. We are trying him now on the 10th of November. I don’t suppose he wants to try both cases at once.” After appellant had further cross-examined her in regard to these transactions, the county attorney, on redirect examination, had her testify: “Mr. Scott was at my house twice, and tried to do that way with me. I remember what happened each time he was there. The first time he was there was about October 24th or 25th, and the last time about the 10th of November — the day he was arrested.” It is further shown by another bill that the county attorney in his closing address said to the jury: “That, if defendant was not guilty of the crime alleged on November 10th, then they should consider the evidence as to whether or not he was guilty of the crime attempted to be proved as having been committed on October 25, 1913.” The court, in approving the bill, states: “The county attorney took the position presented by the charge of the court, which was to the effect, if defendant at any time within three years prior to the return of the indictment did as charged, he would be guilty.” This but emphasizes the contention that the jury was authorized to convict appellant on this trial of either of the offenses testified to by the prosecuting witness, although there were separate indictments pending for each of said alleged offenses.

The record also discloses that appellant moved to strike from the record and instruct the jury not to consider any testimony in regard to an alleged act on October 25th. This was after the county attorney had stated, as shown above, that he was trying the offense this time alleged to have taken place on November 10th. While, under the circumstances,' the court did not err in not striking this evidence from the record, yet the court in his charge should have instructed the jury that he was not on trial for the offense alleged to have occurred on October 25th, and the purposes for which said testimony was admitted in evidence, and especially when appellant’s counsel presented a special charge requesting that the court so instruct the jury as he did in his special charge No. 2. Special charges Nos. 1 and 3 were correctly refused by the court.

Another matter we would call attention to, although not complained of in a way which we would be authorized to consider it, yet as the case will be reversed for the reasons above stated, and as the court submitted aggravated assault, the court should have in some portion of the charge properly defined aggravated assault as applicable to the evidence in this case — the indecent and improper fondling of the person of a female under. 15 years of age.

The judgment is reversed, and the cause remanded.  