
    VINSEN v. STATE.
    (No. 9414.)
    (Court of Criminal Appeals of Texas.
    Nov. 11, 1925.)
    I; Rape i&wkey;l6(I) — -Evidence to convict of assault to commit rape must show that accused intended to gratify passion notwithstanding any resistance. 1
    In order to convict on charge of assault to commit rape, evidence should not only show assault, but that accused intended to gratify his passion on person of woman, and that he intended to do so at all events notwithstanding any resistance on her part.
    2. Rape <&wkey;>53(4) — Force described by pros-ecutrix held wholly insufficient to show intent to commit rape.
    In prosecution for assault with intent to commit rape, held, that record did not show any iaet or circumstance that caused accused to desist in his unwelcome attention towards pros-ecutrix, except his own volition, and that force described by prosecutrix at time he was attempting to fondle her was wholly insufficient to show an intent to commit rape.
    3. Rape <&wkey;54(i) — Evidence held insufficient to support conviction of assault with intent to commit rape.
    In prosecution for assault with intent to commit rape, evidence held insufficient to support conviction.
    Commissioners’ Decision.
    Appeal from District Court, Anderson County; Ben P. Dent, Judge.
    Walter Vinsen was convicted of assault with intent to rape and be appeals.
    Reversed and remanded.
    A. G-. Greenwood, of Palestine, for appellant.
    Sam D. Stinson, State’s Atty., of Green-ville, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for tbe State.
   BERRY, J.

Tbe appellant was convicted in tbe district court of Anderson county of •tbe offense of assault with intent to rape and bis punishment assessed at four years in tbe penitentiary.

Lorraine Davis is tbe alleged injured party. Sbe testified in substance that sbe bad never met Walter Vinsen until be came to ber house on tbe night of September 11,1924, but that sbe bad seen him prior to that time; that on that night be and one Nat Hardeman, a young man whom sbe bad known for about three years, drove up in front of ber bouse and called ber out to tbe ear, and Harde-man asked ber to go driving with him. Tbis sbe refused to do, and he introduced ber to appellant, and appellant asked ber to go riding with him. Sbe agreed to do tbis if be would ride down town and not in tbe country. In response to tbis suggestion, be told ber that be would do so and would put Nat Hardeman out in town. Tbis was all tbe conversation that took place at ber bouse, whereupon sbe got in tbe car on tbe front seat between Hardeman and tbe appellant. They went north until they reached Palestine avenue, then they went east out Palestine avenue, until they came to Link street. Link street leads to tbe Meadow Brook Country Club road as it goes north; in fact, Meadow Brook Country Club road is an extension of Link street. As they were going down North Jackson street, prosecutrix claimed that sbe told them that sbe thought they were going to town, and Nat Hardeman said they -were not going to town and did not intend to go to town, and that sbe told them to take ber borne, and they said they did not intend to do that. Sbe testifies that Nat Hardeman was doing the talking. Sbe also testified that seeing they were not going to take ber home, sbe tried to get out of the car and screamed, and was on Palestine avenue at the time sbe screamed, and that Walter Vinsen put his band over ber mouth, and that sbe got away from him out on tbe end of Link street'and screamed again, and then be put bis hand over her mouth again and held it there until they got to tbe Codn-try Club road. Sbe screamed one time from tbe time they started on Link street until they reached tbe place where they got out of tbe car. When they reached the place near tbe Country Club, Nat Hardeman stopped tbe car and said that prosecutrix bad to get out, and Walter Vinsen pulled ber out and Nat Hardeman pushed her.1 Sbe says that appellant did not say anything to ber at tbe time be was pulling ber out of tbe car. After sbe got out of tbe car, Nat Hardeman drove on off down the road, and as be drove off he said that be would be back after a while. Prosecutrix testified that sbe knew the Lockes lived close to tbe place where she was taken out of tbe ear. Sbe also testified that there was another bouse wbicb tbe state’s testimony shows was situated from about 80 feet to 50 yards from where sbe and tbe appellant got out of tbe car," and tbe state’s testimony shows that tbe people living in this liouse were at home on the night this offense is- alleged to have been committed. She further testified that after Harde-man had driven away, appellant said he wanted her to give him some, and she said she was not and he said she was, if he had to make her; and that she tried to get away and struggled all the way down to where the Lockes live, and she got away from him and started to running past Lockes, and he caught her down at the end of the hill, and she got loose from him again and ran up to Lockes. She testified that it must have been close to an hour that she tussled with the appellant there from the time they got out of the car until they got up near to the Locke place. She further testified that during the time they were scuffling the appellant did not say anything to her. Describing the tussle between them, she said:

“Well, he grabbed me by the wrist and tried •to throw me down and tried to trip me with his feet, but he didn’t succeed in doing that for quite a bit, and then he did. He threw me down twice, but I had gotten up before he could get down, and the third time he threw me down he fell down on top of me, and I struggled and got away from him then. Yes, sir; he put his hands on me. He put his hands on my legs, above my knees. At the time he threw me down the third time and fell down on top of me, he had his trousers unbuttoned and had unfastened his belt, also. When he threw me down, at the time he fell on top of me, he threw me on my back on the ground. His legs were on top of mine. My legs were flat on the ground. He propounded the question to me and asked me to give him some a number of times. Yes, sir; I understood what he meant by that. I understood it to mean that he wanted to have sexual intercourse with me. The first person I met after I left this place, and had gotten loose from Walter Yinsen, was Clyde Locke. I had traveled into the grounds of the Country Club. No, sir; I couldn’t' estimate how many yards that would be — I couldn’t estimate the distance. Yes, sir; I made known to Mr. Locke what the trouble was. He brought me home. He brought me in a car. After the tussle with Walter Yinsen that I have just described, my dress was torn off of my shoulders and torn around, the bottom of the dress.. Yes, sir; I had some bruises on my body. There-was a bruise on my shoulders, and I think he must have done it with his fist. I remember slightly when I received that bruise. It was when we were struggling and he was trying to hold me, and I wrenched away from him and his fist, hit me on my shoulder. The defendant was not under the influence of whisky. Yes, sir; he had drunk some whisky. I know that he had been drinking some whisky; I smelled it on his breath. * * * I did not give the defendant my consent to treat me as- he did treat me. I did not give him permission to put his hands on my legs above my knees. I did not give him my consent to put his hands on me anywhere. * * * Yes, sir; there was a house located near the place. No, sir; the Locke house was not the nearest house to the place where we were. I don’t know whose house it was, but it was right in front of where we were, just across the road from where we were. I couldn’t say just exactly how far, because I don’t know; it was about as far as from here to the back of the courtroom. Yes, sir; in going to the Locke house you pass directly by, or near, the other house that was closest to the place where this trouble happened. I was at the beginning of Link street at the time I screamed. No, sir; I did not make any effort to make an outcry after that before I was taken out of the car.”

On cross-examination the prosecutrix testified as follows with reference to the lick on her shoulder: ' -

“I do not know whether that lick was on purpose or was an accident; I can’t tell which it was.”

After further testifying on cross-examination that Hardeman came back by where he had left them about 20 minutes after he had gone the first time, and that she did not request Hardeman to take her to town, and in fact said nothing to Hardeman when he came back where they were, she made the following statement:

“I came to town with Clyde Locke. No, sir; I did not ring for the officers. Yes, sir; we met some officers on the way to town. I don’t know who they were. Mr. Locke said they were officers. I told Mr. Locke not to tell them about it, that I would lose my position if it was found out. Yes, sir; I told him I didn’t want them to see me and didn’t want them to know I was in the car. No, sir; I didn’t want any prosecution in this case at that time. I didn’t want to lose my position, and I told him that I wanted it kept quiet.”

The appellant urgently insists that the evidence is not sufficient to show an assault with intent to commit rape. The authorities in this state are one way to the effect that in order to convict the defendant on a charge of assault to commit rape, the evidence should not only show an assault but that the defendant intended to gratify his passion on the person of the woman, and that he intended to do so at all events, notwithstanding any resistance on her part. It has also been decided in a very able opinion by Judge Hurt that it is necessary to show a present intention-on the part of appellant to commit rape on the prosecutrix by the use of such force as was necessary to overcome resistance on her part. There is nothing in the record showing any fact or circumstance that caused the appellant to desist in his unwelcome attention toward prosecutrix except his own volition, and the force described by prosecutrix at the time he was attempting to fondle her is in our opinion wholly insufficient to show an intent to commit rape. O’Brien v. State (Tex. Cr. App.) 40 S. W. 969; Stoker v. State, 93 Tex. Cr. R. 24, 245 S. W. 44; Dina v. State, 46 Tex. Cr. R. 402, 78 S. W. 229; Dockery v. State, 35 Tex. Cr. R. 487, 34 S. W. 281; Wood v. State (Tex. Cr. App.) 61 S. W. 309; Caddell v. State, 44 Tex. Cr. R. 213, 70 S. W. 91; Coffee v. State (Tex. Cr. App.) 76 S. W. 761; Warren v. State, 51 Tex. Cr. R. 598, 103 S. W. 888; Steinke v. State, 33 Tex. Cr. R. 65, 24 S. W. 909, 25 S. W. 287.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

Because in our opinion the facts are insufficient to support the verdict; the judgment is reversed and the cause remanded. 
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