
    MILLER v. STATE.
    (No. 5161.)
    (Court of Criminal Appeals of Texas.
    Oct. 30, 1918.
    Rehearing Denied Nov. 27, 1918.)
    1. Rape <&wkey;59(23) — Instruction — Assault with Intent — Attempts.
    In prosecution for assault to commit rape, it was error for the court to submit to the jury the law of attempt to commit rape.
    2. Criminal Law <@=51172(8) — Error in Instruction — CUre by Verdict.
    In prosecution for assault to commit rape, error in submitting the law of attempt to commit rape was harmless, where the jury acquitted accused of both offenses and convicted of aggravated assault.
    3. Indictment and Information <&wkey;191(8)— Included Offense — Aggravated Assault.
    The offense of assault with intent to rape includes aggravated assault.
    4. Rape <§=15— Attempt — Effect of Assault.
    Where an assault is made, conviction cannot be had for an attempt to rape.
    5. Criminal Law <&wkey;1144(14) — Appeai>-Pre-sumptions — Instructions.
    In prosecution for assault with intent to commit rape, where the court submitted the issue of aggravated assault and the jury convicted of that offense, the presumption on appeal, in the absence of the testimony is that the court, properly submitted such issue upon evidence warranting its submission.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    W. C. Miller was convicted of aggravated assault, and he appeals.
    Affirmed.
    Osear H. Calvert, of Dallas, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was charged in the ordinary stereotyped form with assault to commit rape upon a girl under 15 years of age. The court submitted to the jury the law of attempt to commit rape. This was error. An indictment charging assault with intent to commit rape will not sustain a conviction for an attempt to rape. This question -has been before the court in a great number of cases which will be found collated in Branch’s Ann. P. C. pp. 1012, 1013. The jury, however, acquitted appellant of assault to rape or attempt to rape. These issues passed out of the case.

The court also submitted the question of aggravated assault, for which appellant was convicted. Under the charge in the indictment for assault to rape, if the facts authorized the charge, appellant could be convicted of aggravated assault. He may have' made the assault upon the girl, and if the facts so showed, and it was an assault with intent to commit rape, it might he an aggravated assault. The fact that an attempt to rape was submitted by the court would not affect the question of aggravated assault, if the evidence showed that appellant made the assault. Where an assault is made, a conviction cannot be had for an attempt to rape. It does not make any difference what the facts may be, because an attempt to rape precludes the idea of an assault; but, if an assault was made by appellant upon the girl, the jury might be instructed to convict of aggravated assault. This would depend upon the evidence, and the fact that the court submitted an attempt to rape, for which appellant was acquitted, would not prevent a conviction for aggravated assault if the facts showed that an assault was in fact made upon the girl. If no assault was made upon her, then a conviction could not be had for any phase of assault. This we cannot determine because the evidence is not before us. The court having submitted the issue of aggravated assault, and the jury so found, in the absence of the testimony, the presumption is that the court properly submitted this issue to the jury, and that it was warranted by the facts.

Taking this view of the record and the case, the judgment will be affirmed. 
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