
    William Porter v. The State.
    
      No. 473.
    
    
      Decided May 19.
    
    1. Assault with Intent to Commit Rape — Charge—Degree of Force. — On a trial for assault with intent to commit rape it is error for the court to fail and refuse to instruct the jury, in effect, that to justify a verdict of guilty they must believe, beyond a reasonable doubt, that accused intended to gratify his passions and have carnal intercourse with the prosecutrix at all events, and notwithstanding resistance on her part.
    2. Same — Minor—Simple Assault. — On a trial for assault with intent to rape, if the evidence shows that defendant was a minor, the court should instruct the juiy that if they believe that the accused assaulted the prosecutrix, but that he did not intend to use tbe degree of force necessary to overcome all resistance on the part of said prosecutrix, they might find him guilty of a simple assault. Following Pfefierling v. The State, 40 Texas, 487.
    Appeal from tbe District Court of Bexar. Tried below before Hon. George H. NooNAN.
    This is an appeal from a conviction for assault witb intent to rape, tbe punishment being two years’ imprisonment in tbe penitentiary.
    Tbe facts are sufficiently stated in tbe testimony of tbe prosecutrix, wbicb is as follows:
    Freda Mink testified as follows: “My name is Freda Mink. On tbe 7tb day of January, 1894, I was going borne from Mrs. Buckman’s place, where I was working. It was on Sunday afternoon, about 3 o’clock. I got on tbe mule car wbicb connects witb tbe West Commerce electric car line and runs to tbe East End addition of tbe city of San Antonio, wbicb is a long way (distance I can’t state) out from tbe center of tbe city. Tbe mule was driven by a small boy. When I got aboard tbe car I was tbe only passenger. Soon afterwards tbe defendant and another boy [whom witness identifies in court room] got on tbe car. When we got to tbe end of tbe track tbe three boys, tbe little driver, defendant, and the other negro boy, whispered together, and then tbe little driver and tbe other negro boy went away and left tbe defendant on tbe car alone witb me. He was sitting on tbe seat on tbe opposite side of tbe car from me. He (after tbe boys left and bad gotten out of sight) asked me my name and where I lived. I pretended not to bear him. Then be repeated tbe inquiry, wbicb frightened me, and I thought best to make some answer. I did so. He then made an indecent proposal to me, to wbicb I replied I didn’t understand him; when be immediatety arose, came over to where I was sitting, took bold of me by the arms, and tried to push me down on the car seat. I shoved him off from me, and, being very much frightened, ran out of tbe car and up the track, and called to some people living up tbe road a piece for protection. He followed me out of tbe car and followed me up tbe track, and called to me and said if I would come back be would do me no barm. He (defendant) was soon after-wards joined by bis negro companion and tbe two left, going in tbe direction of Mr. Kampmann’s pasture. I then returned. This occurred in Bexar County, Texas, on tbe 7th day of January, A. D. •1894. I am a German girl, 15 years of age, and live in San Antonio, Texas.”
    The special requested instructions asked for defendant and refused by tbe court are set out in tbe opinion.
    No briefs in tbe record.
   HTTET, PRESIDING Judge.

This is a conviction for an assault with intent to commit rape. According to tbe testimony of tbe prosecutrix, she and defendant were alone in a street car, tbe driver having left. Defendant asked ber ber name and where she lived. She pretended not to bear him. When be repeated tbe inquiry, she was frightened, and answered. He then made an indecent proposal to ber, to which she replied that she did not understand him. He immediately arose, came across to where she was sitting, took bold of ber by tbe arms, and tried to push ber down on tbe seat of the street car. She shoved him off, ran out of tbe car, ran up tbe track, and called to some people for protection. He followed ber out of tbe car and followed ber up tbe track, calling to ber that, if she would come back, be would do ber no barm. She is 15 years of age. Defendant is a negro boy. Tbe court, in tbe charge to tbe jury, submitted simply tbe issue of assault with intent to rape; that is to say, that tbe jury, under tbe charge, must either acquit or find tbe accused guilty of tbe felonious assault. Tbe charge does not define tbe character or degree of force necessary to constitute rape. The defense asked tbe following charges, which were refused: (1) “In order to find tbe prisoner guilty of an assault with intent to commit rape, you must be satisfied, beyond a reasonable doubt, that tbe prisoner, when be laid hold of tbe prosecutrix, not only desired to gratify bis passions upon ber person, but that he intended to do so at all events, and notwithstanding any resistance on her part.” (2) “If you believe from tbe evidence that tbe defendant did assault tbe said Freda Mink, but you do not believe, beyond a reasonable doubt, that be, under the circumstances, and at tbe time and place, intended to have carnal knowledge of ber at all events, and notwithstanding resistance on ber part, then you will acquit defendant of tbe charge of assault with intent to commit rape, but you may find tbe defendant guilty of assault, and assess bis punishment at a fine.” * * * Tbe defendant reserved a bill to tbe refusal to give these charges.

Tbe requested charge number 1 was the law of this case. Rex v. Lloyd, 7 Car. & P., 318; Rex v. Wright, 4 Fost. & F., 967; Commonwealth v. Merrill, 14 Gray, 415; Reynolds v. The People, 41 How. Pr., 179; Jones v. The State, 53 Ga., 50; The State v. Burgdorf, 53 Mo., 65; Mahoney v. The People, 43 Mich., 39; The State v. Hagerman, 47 Ia., 151; Taylor v. The State, 50 Ga., 79; Brown v. The State, 27 Texas Crim. App., 330; Shields v. The State, 32 Texas Crim. Rep., 498.

Tbe requested charge number 2 was the law of this case. Tbe testimony of the prosecutrix presented for tbe determination of tbe jury tbe issue whether or not tbe accused intended to use that degree of-force we have defined; and, in tbe event that tbe jury believed that such intent did not exist, then defendant would be guilty of a simple assault, if tbe proof shows that be is not an adult. By comparing tbe facts in tbe present case with those in tbe case of Pfefferling v. The State, 40 Texas, 487, it will be found that in tbe latter a much stronger case was made, and we think the opinion of Judge Moore in that case is conclusive of this.

The judgment is reversed and the cause remanded.

Reversed, and demanded.

Judges all present and concurring.  