
    STOKER v. STATE.
    (No. 6816.)
    (Court of Criminal Appeals of Texas.
    Nov. 29, 1922.)
    1. Rape <§=c53 (3) — Evidence insufficient to sustain assault with intent.
    In prosecution for assault on 16 year old girl with intent to rape, evidence held insufficient to sustain conviction, where not demonstrating a present intent to at once accomplish an act of intercourse.
    2. Criminal law <§=>406(2) — Arresting officer need not be bodily present at ail times to keep accused in legal custody as affecting the admissibility of declarations.
    Where an officer, after arresting one for assault with intent to commit rape, trusts him to go before the justice of the peace alone and does not remain with him but keeps him under surveillance until he is released on bail, declarations of defendant not made under circumstances rendering a confession admissible as defined in Code Cr. Proc. 1911, art. 810, are erroneously received, it not being essential to the legal custody of defendant that the arresting officer be bodily present at all times.
    <S=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes'
    . Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Mark Stoker was convicted of assault with intent to rape, and he appeals.
    Reversed and remanded.
    Russell & Seale, of Nacogdoches, for appellant.
    W. B. Bates, Dist. Atty., and S. M. Adams, both of Nacogdoches, and R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The offense is assault with intent to rape; punishment fixed at confinement in the penitentiary for a period of five years.

Nettie Rogers, the subject of the alleged assault, was a girl 16 years of age, residing with her parents. The occurrence upon which the prosecution is based took place in the morning before breakfast.' The appellant had spent the* night at her home. She slept in the room in which her mother and-two babies slept. Her mother had left the room to prepare breakfast and ber father was engaged about tbe premises. Sbe awoke and discovered tbe appellant sitting on ber bed and bolding in bis band ber left hand on which sbe bad a ring. Sbe struggled to get up, and he put bis bands on ber breast and other parts of ber body. A child cried, and sbe told appellant that be had better leave, that ber mother would be coming. Sbe dressed and “raised a racket” about the ring, and told tbe appellant that sbe wanted it. Sbe was crying. Appellant denied having- the ring. Sbe told him that be did, as be bad taken it off ber finger. While tbe appellant was on the bed, be said:

“Honey, will you promise to meet me at the gap when I start home. If you will, I will give you some money and tell you bow to make more money.”

Tbe witness said:

“Then I tried to get loose from him. When the baby cried he left. While the 'baby was crying I told him that mother was coming and he had better leave. I was off the bed then, and he had hold of my arms. He never attempted to crawl in bed with me after I roused up. He kissed me after I roused up and began to cry. * * * After breakfast, papa called me out and asked me if I had gotten my ring.”

While out at tbe car, tbe appellant wanted tbe witness to apologize. Sbe finally apologized about tbe ring, but not about tbe other matter. Before be left, she- bad told ber father about a part of what tbe appellant had done. Sbe told ber father about appellant putting bis band on ber face and about getting the ring.

Tbe bouse in which tbe prosecutrix and her parents resided bad three sleeping rooms, a gallery in front, a kitchen, and a back porch. Tbe appellant slept on tbe porch, which could be reached only by passing through one of the rooms. One room was occupied by tbe father of tbe prosecutrix and ber grandmother; one room was occupied by the prosecutrix, ber mother, and two small children.

Tbe father arose early and fed bis stock. He returned and woke bis wife, and sbe went to prepare tbe breakfast. Tbe father then went to call tbe appellant to prepare for breakfast and found him dressed and walking on the gallery. He washed his face and sat down to wait for breakfast. Quoting tbe witness, be said: “About that time my daughter came out of tbe bouse crying and begging for ber ring,” and she said to appellant: “I want my ring,” and he began to pacify ber and said: “You have lost it or laid it down somewhere and forgot where you put it.” Sbe then went into the kitchen where ber mother was. Her-mother came out at once and said to appellant: “Have you been in ber room?” He said:. “No, I have not been' there bothering ber.” Tbe witness said: “My wife went back and pretty soon she said that breakfast was ready, so we went in and ate breakfast, and after that we came back out on tbe gallery. Tbe girl was still crying.” The father asked tbe appellant if be bad been in Nettie’s room, and tbe appellant said that be bad.

Tbe witness said that tbe appellant, on tbe night previous, bad complained that bis kidneys were giving him trouble and at times demanded immediate attention; that such was the situation on the morning in question, and that be did not want to go out on tbe gallery without knowing who was in tbe room, and be called to find out; that be did not want to “make water” without knowing who was in tbe room; that be bad gone in the room to see who was in there before he went out on tbe gallery to “make water.” Appellant, the father, and tbe daughter walked out to appellant’s car, and sbe said: “Papa, he was; he came in there,” and sbe told tbe witness about appellant bolding ber band and calling ber; that sbe woke up and felt fainty-like, as sbe was subject to fainty spells. Appellant then begged that tbe mat-' ter be overlooked. He exposed bis pockets to show that be did not have tbe ring. Tbe witness said: “I am going to let you go, but will investigate tbe matter further. When I have investigated it, I will see you later.” They shook bands, and tbe appellant departed.

Tbe evidence falls short of proving tbe offense as defined in tbe case of Cromeans v. State, 59 Tex. Cr. R. 611, 129 S. W. 1129. It does not demonstrate a present intent to at once accomplish the act of ’ intercourse. Thompson v. State, 82 Tex. Cr. R. 524, 200 S. W. 168; Armstead v. State, 89 Tex. Cr. R. 477, 232 S. W. 519; Blackstock v. State (Tex. Cr. App.) 237 S. W. 282.

The proximity of the members of the family, tbe hour of tbe day, tbe conduct, as well as tbe language, imputed to tbe appellant, are destructive of tbe -theory of an intent to perform the act at the immediate time and place. They rather suggest his intent to persuade the prosecutrix to submit' to his embraces at a subsequent occasion.

The facts may justify a verdict of conviction for aggravated assault. Upon that issue, however, if requested upon another trial, the jury should be instructed on tbe theory of consent to such familiarity,, if any, as took place. There was evidence that on a, previous occasion tbe prosecutrix bad received some money from tbe appellant; that on tbe 'evening in question be gave ber a dollar and requested her to come to his bed; that she took no offense at this request, though she declined to comply with it. Hand v. State, 88 Tex. Cr. R. 431, 227 S. W. 194; Price v. State, 90 Tex. Cr. R. 534, 236 S. W. 723; Shields v. State, 39 Tex. Cr. R. 14, 44 S. W. 844.

After .the complaint, a warrant was issued for the arrest of the appellant and placed in the hands of an officer. The officer went to the appellant and told him of the necessity of arresting him and showed him the warrant, but, having to make another arrest at a different place, he trusted the appellant to go before the justice of the peace at a certain hour on the same day. The appellant appeared. The officer, while not remaining with the appellant all of the time, kept him under surveillance until he was released on bail. Under these circumstances, we think it was error for the court to receive in evidence the declarations of the appellant which were not made under circumstances rendering a confession admissible, as defined in article S10 of the Code of Criminal Procedure. It was not essential to the legal custody of the appellant that the arresting officer be bodily present at all times. Buckner v. State, 52 Tex. Cr. R. 272, 106 S. W. 363. The bill of exceptions upon this subject is hardly sufficient to require its consideration. The matter is mentioned, however, in view of another trial.

In his closing address to the jury, the counsel for the prosecution indulged in language similar to that commented upon in the Carter Case, 87 Tex. Cr. R. 209, 221 S. W. 604. Doubtless, this will not occur again on another trial.

Eor the reasons stated above, the judgment is reversed and the cause remanded.  