
    Oscar Dudley v. The State.
    
      No. 1142.
    
    
      Decided April 21st, 1897.
    
    Assault With. Intent to Rape a Female Under Fifteen Years of Age—Indictment.
    An indictment for assault with intent to rape a girl under 15 years of age, is fatally •defective if it fails to expressly negative the fact that the female was the wife of defendant.
    Appeal from the District Court of Falls. Tried below before Hon. S. R. Scott.
    Appeal from a conviction for assault with intent to rape; penalty, twenty years’ imprisonment in the penitentiary.
    The indictment is set out in the opinion. No statement necessary.
    
      E. T. Johnson, for appellant.
    The indictment is fatally defective. Penal Code, Arts. 608, 633; Rice v. State, 37 Tex. Crim. Rep., 36.
    
      Mann Trice, Assistant Attorney-General, for the State.
    [No brief found with the record.—Reporter.]
   DAVIDSON, Judge.

Appellant was convicted of assault with intent to rape a girl under the age of 15 years, and-appeals. The charging part of the indictment is as follows: “Oscar Dudley * * * did then and there unlawfully in and upon Pearl Hyden, who was then and there a female under the age of fifteen years, make 'an assault, with the intent then and there to commit the offense of rape upon the said Pearl Hyden, by then and there attempting to have carnal knowledge of the said Pearl Hyden.” It is contended that this indictment .is fatally defective in failing to charge that the assaulted female was not the wife of the défendant. This identical question came before us in the case of Edwards v. State, ante p. 242, on motion for rehearing, at our recent Dallas term. It was there held that in cases of assault with intent to rape, the indictment must negative the fact that the girl was the wife of the accused. Eor proper form of indictment in this character of case, see White’s Ann. Penal Code, § 1101. Under the authority of Edwards v. State, and authorities there cited, the judgment in this case is reversed, and the prosecution ordered dismissed.

Reversed and Dismissed.

Hurt, Presiding Judge, absent.  