
    Oscar Fewox v. The State.
    No. 3372.
    Decided December 20, 1905.
    1. —Assault with Intent to Commit Rape—Charge of Court.
    On trial for assault with intent to commit rape, it was error to charge that the injury intended may be either bodily pain, constraint, or sense of shame, or other disagreeable emotion of the mind.
    2. —Same—Aggravated Assault—Force.
    On a trial for assault to commit rape, where the evidence showed that defendant did not use all the force necessary to overcome resistance in the assault, the court should have submitted the issue of aggravated assault.
    Appeal from the District Court of Madison. Tried below before Hon. Gordon Boone.
    Appeal from a conviction of assault with intent to commit rape; penalty, two years imprisonment in the penitentiary.
    The opinion states the case.
    No brief for either party has reached the hands of the Reporter.
    
      Howard Martin, Assistant Attorney-General, for the State.
   BROOKS, Judge.

Appellant was convicted of an assault with intent to commit rape, and his punishment fixed at two years confinement in the penitentiary. Appellant complains of the following charge: “The injury intended may be either bodily pain, constraint, or sense of shame or other disagreeable emotion of the mind.” This charge has been specifically condemned in Carter v. State., 44 Texas Crim. Rep., 312; 6 Texas Ct. Rep., 263, and Hudson v. State, decided at the present term. We think, in addition to the above, that the evidence raises the issue of aggravated assault, since if appellant did not use all the force necessary to overcome resistance in the assault, he would only be guilty of an aggravated assault, and the court should have so charged.

For the errors discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.  