
    TAFF v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 31, 1912.
    Rape (§ 59) — Trial — Instructions — Elements op Assault with Intent to Rape— Fob.ce.
    Where it was shown, on a prosecution for assault to rape, that defendant approached the house in which prosecutrix and her mother were, and which was within speaking distance of neighboring houses, and came on the gallery, and when asked who he was told his name, and was given something to eat on condition that he go away, that he returned and tried to raise a window, and, without any threat, caught prosecutrix by the wrist and upon her screaming voluntarily let go and went away, the refusal of a requested instruction that, to constitute an assault with intent to rape_, the assault must be made with' the specific intent to have intercourse with prosecutrix without her consent, and that if defendant assaulted the prosecutrix, intending to have intercourse with her, provided she would consent, and not intending to have intercourse without her consent, or by force, he would not be guilty of the offense charged, was reversible error.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 88-100; Dec. Dig.' § 59.]
    Appeal from District Court, Lee County; Ed. R. Sinks, Judge.
    Magruder Taff was convicted of assault to rape, and he appeals.
    Reversed and remanded.
    The ■ evidence, taken most strongly for the state, discloses that Selma Franke was living with her mother in a little house near Lincoln, at the intersection of the Giddings and Lincoln and Austin and Brenham roads; that Herman Lukas and his wife, mother, and children lived within talking distance of her house; that Ernst Hoffman, his wife, mother, and children liyed within talking distance of her house, and that she could stand on her gallery and talk to the people at both houses, and that said people, save Lukas and Hoffman, were at their homes, and that Selma Franke’s mother was in the house with her at the time; that the defendant came to the house about 9:30 o’clock at night on June 3d, a full moonlight night, and hollowed two times, and the third time he hollowed he came on the gallery and brushed against the door; that when asked who he was he said he was Magruder Taff; that she told him to leave, and he got off the gallery and went around to the south window, the window being open about 18 inches, with a prop under it; that she was sitting on a bench, and that there was a big box, about 3 feet square and high, between her and the window; that the defendant asked her to shake hands with him, and reached his hand through the window, and that the said Selma Franke shook hands with him; that he again asked her to shake hands with him, and she refused; that he asked her for some bread and butter, and she said she would give him some if he went away and he said he would go away; that she gave him the Dread and butter through the open window, and he went off a little piece, and she watched him through the window, and then he returned and asked for a drink of water, and she said she had none; that he said he would see about that; that she then went and got him a cup of water, and he drank it and returned the cup, and tried to raise the window; that she caught hold of the lower sash of the window and tried to pull it down, and the defendant, who was on the outside of the house, standing on the ground, then caught her by the wrist, and then, for the first time, she saw he was a negro, and she commenced to scream, and the defendant turned her wrist loose and left the place; that her house was a two-room house, and that her mother was in the next room, the door being open between the rooms, and a light burning in the room, and no one else was present, and defendant voluntarily turned her wrist loose when she screamed, and made no further effort to assault or injure her; that he did not threaten her; that she had never seen defendant before that time, and that the defendant told her that night, in a low voice, that he was Magruder Taff; that she was 22 years old, and has been cooking since she was 15 years old, working as a menial for 10 or 15 different families during this time.
    E. T. Simmang, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of assault to rape; his punishment being assessed at 10 years’ confinément in the penitentiary.

The facts will be set out in another portion of the opinion.

1. The court charged the jury on assault to rape by force, and then instructed the jury that if the appellant did not intend to commit rape by force they would convict him of aggravated assault. Appellant, in this connection, asked the following charge, which, under the peculiar facts of this case hereafter set out, we are of opinion ought to have been given: “You are instructed that every assault committed by an adult male person upon the person of a female does not constitute an assault with the intent to commit the offense of rape; but, in order to make the. offense an assault to rape, the defendant must commit an assault upon the female with the specific intent to have intercourse with her, and without her consent. An assault upon a woman, with the intent to have improper intercourse with her, but without the use of force, and not without the consent of the woman, does not constitute the offense of assault to rape, no matter how offensive the defendant’s acts may be, or how aggravated the circumstances. Now, if you believe from the evidence that the defendant, Magruder Taff, committed an assault upon Selma Franke, if any assault was ever committed by the defendant, and that at the time he committed the assault he intended to have carnal intercourse with Selma Franke, provided the said Selma Franke would submit to him, and that he did not intend to have carnal intercourse with her, the said Selma Franke, without her consent, or by force, then you are instructed that this defendant would not be guilty of the offense of assault to rape, and if you so believe it becomes your duty to acquit the defendant of this offense.” Under the facts of this case, the refusal of the court to give this charge was error of such material character as requires a reversal of the judgment. The reporter will report such of the facts as may be necessary to show the applicability of this charge to the facts.

The judgment is reversed, and the cause is remanded.  