
    BLACKSTOCK v. STATE.
    (No. 6574.)
    (Court of Criminal Appeals of Texas.
    Feb. 8, 1922.)
    Rape &wkey;»59( 19) — Instruction on finding of assault with intent to rape held erroneous.
    In prosecution for assault with intent to rape, in which it was the state’s theory that, after putting his hands upon prosecutrix, and insisting on having sexual intercourse, defendant permitted her to go on her promise to meet him on following night for such purpose, instruction that “the laying on of the hands with the specific intent at the time to have carnal knowledge of a woman would be an assault,” (freíd erroneous, in that jury might have found defendant guilty even though it believed his acts related to a future, and not a present, intent, and went to the extent of solicitation only.
    Appeal from District Court, Shackelford County; W. R. Ely, Judge.
    Franklin Blackstock was convicted of assault with intent to rape, and he appeals.
    Reversed and remanded.
    A. A. Clarke, of Albany, and J. F. Cunningham, of Abilene, for appellant.
    
      R. G. Storey, Asst. Atty. Gen., for the State,
   MORROW, P. J.

Conviction is for assault with intent to rape.

It is the state’s theory that the assault was committed upon a young lady between 17 and 18 years of age; that she was in an automobile with the appellant, a married man, about 28 years of age, and with his companion, Jones, a single man; that, while she entered the car voluntarily, upon the idea that she was going to the town of Moran, the car was deflected into a lane against her will, and the appellant put his arm around her and kissed her, and insisted upon her indulging in sexual intercourse with him; that upon her statement to him that she would meet him on the following night for the purpose, she was taken home.-

The state’s theory of the assault was controverted by the testimony of the appellant and Jones, the latter testifying that the familiarity of the appellant consisted in putting his arm around the girl without protest on her part,' while appellant denied going to that extent.

In its charge to the jury, the court, after defining an assault .in the usual terms, added:

«* * * Aug the laying on of the hands with the specific intent at the time to have carnal knowledge of a woman, would be an assault.”

In the Gromeans Case, 59 Tex. Cr. R. 622, 129 S. W. 1135, the court said:

“That if one take hold of a child under fifteen years of age and handle her in such manner as under the circumstances of the particular case demonstrates a present intent to at once so subject her to his power, she consenting or not, as that he may now accomplish the act of intercourse, he would be guilty of the offense, but if, as we view the facts in the case, he has gone no further than placing his hand upon her with the probable, and we think you might say the evident, intent to detain her and make further solicitation, notwithstanding her refusal, yet having in his mind a hope that if she could be induced to remain he might persuade her, we say, going no further than this, the appellant would not be guilty of assault to rape.”

In view of these declarations, interpreting the statute upon which the offense is founded, the charge quoted falls short of giving the jury an adequate guide to determine whether the appellant had made the kind of assault which would render him guilty of an assault with intent to rape. The charge does not limit their inquiry to “a present intent to at once subject her to his power, she consenting or not.” Under the charge, the jury might have found, him guilty though believing that his acts related to a future, and not a present, intent, and that they went to the extent of solicitation only. Such is adverted to in the quotation above, wherein the court says:

“We do not understand that it is an assault to rape if one forcibly detain a girl and compel her to hear solicitations to have intercourse at a time in the future.” Cromeans v. State, supra.

See, also, Armstead v. State, 89 Tex. Cr. R. 476, 232 S. W. 519.

We think there was no evidence raising the issue as to the want of chastity of the prosecutrix, but we regard the charge complained of as erroneous. For that reason we order the judgment of the trial court reversed, and the cause remanded. 
      <S=For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
     