
    (85 Tex. Cr. R. 103)
    GARDNER v. STATE.
    (No. 5306.)
    (Court of Criminal Appeals of Texas.
    March 26, 1919.)
    1. Criminal Law @=>570(1) — Insanity—Evidence.
    Evidence of accused’s insanity held to require reversal of conviction of assault with intent to rape a female under 15 years of age.
    2. Criminal Law @=>1159(5) — Sanity — Verdict — Review.
    Where the testimony of many witnesses that defendant is insane is not controverted, a conviction cannot stand.
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Ed Gardner was convicted of assault with intent to rape a female under 15, and he appeals.
    Reversed and remanded.
    Oscar H. Calvert and La Payette Fitzhugh, both, of Dallas, for appellant,
    E. A. Berry, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

This is the second appeal in this case. See Gardner v. State, 198 S. W. 312, L. R. A. 1918B, 1144.

Appellant was convicted of assault with intent to rape a female under the age of 15 years, and his punishment fixed at two years’ confinement in the penitentiary.

Complaint is made of the insufficiency of the indictment; it being claimed by appellant that such indictment combined in one count the two offenses of assault with intent to rape and an attempted rape. Indictments almost identical in form have been tiefore this court and held good. Taylor v. State, 44 Tex. Cr. R. 153, 69 S. W. 149.

We have examined this record carefully, in view of the admission in the brief of the state, filed by the able Assistant Attorney General, that there is reversible error in that a large number of witnesses testified to the insanity of the appellant, and that no witnesses were placed upon the stand by the state to controvert this issue. This admission is made on the authority of the Kiernan Case, 208 S. W. 518, recently decided. It appears from the evidence that the appellant was a man 72 years of age, and he is shown by all of the witnesses to have been a man of the highest standing and character all of his life until a few years prior to the filing of this case, when failing health and advancing age caused his mental decay to such an extent as to induce numerous witnesses to testify that they believed him insane.

The alleged assaulted party is a girl only 7 years of age, and the. facts testified to by the eyewitnesses show that the assault occurred in the blazing noon, on the third step from the bottom of an open stairway on the outside of a brick hotel, having a vacant lot next it; that this was in full view of street cars, jitneys, passers-by, and the persons in nearby buildings; that men were at work at the foot of said stairs, and a man at work just behind the stairs; and that the two eyewitnesses who located themselves just across the alley and in plain view watched the appellant with the child upon his lap for a length of time extending over 10 to 20 minutes, and made no outcry or movement to interfere or attempt to restrain what was being done. The entire testimony appears so unreasonable and the testimony of these eyewitnesses as outlined above tend so strongly to corroborate the testimony as to appellant’s insanity that the court is inclined to agree with the Assistant Attorney General.

The judgment of the lower court is reversed, and the cause remanded.  