
    STEWART v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 7, 1910.
    On Motion for Rehearing, Feb. 8, 1911.)
    Rape (§ 59) — Instructions.
    In a prosecution for assault with intent to rape, where the evidence showed that after a struggle defendant abandoned his efforts, it was not error, after the court had charged on the theory 'of the state that such assault was made with the specific intent to commit rape by force and the defendant’s theory traversing this contention, to refuse a special instruction that if the jury believed the defendant had formed the intention of committing the assault, but that before it was made he had abandoned the former intent, he would not be guilty.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 88-100; Doc. Dig. § 59.]
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    Deb Stewart was convicted of assault with intent to rape, and he appeals.
    Affirmed.
    G. E. Smith, L. Y. Ried, and John R. Storms, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   RAMSEY, J.

This is an appeal from a conviction for assault with intent to rape obtained in the district court of Comanche county on May 5th of this year, in which appellant’s punishment was assessed at confinement in the penitentiary for a period of two years.

It is a companion case with that of Ross v. State, 132 S. W. 793, and White v. State (recently decided) 132 S. W. 790, and is for the most part in its facts identical with these cases. The only substantial respect in which this case differs from these cases lies in the fact that just before the prosécuting witness, Meda McDonald, was permitted to start home, the appellant seems to have concluded that the attempt to assault her or obtain her consent to carnal intercourse would be unavailing, and seems to have abandoned and to some extent repented of the outrage attempted to be perpetrated upon her. This act and conduct, however, was at the conclusion of quite a struggle, and after most of the offensive acts constituting the assault had been done.

In this condition of the record the appellant requested the court to give the jury the following special charge: “You are further instructed as a part of the law of this case that if you should believe frgm the evidence beyond a reasonable doubt that the defendant had formed the intention at the time and occasion alleged in the indictment to assault the said Meda McDonald and to rape her, but if you should further believe that before such assault was made, if any, the defendant Deb Stewart had abandoned his former intent, if any, then you are instructed that the defendant, Deb Stewart, would not be guilty of the offense of assault with intent to rape.” The action of the court below in refusing to give this special instruction is based upon the following statement made by him in a bill of exceptions taken to his refusal to so charge the jury: “The evidence did show that defendant desisted before others with him desisted, but it was shown beyond question that before the defendant desisted that he and those acting with him had made an assault upon prosecu-trix by force without her consent. On this phase of the case there was a conflict. On the theory of the state that such assault was made with the specific intent to commit rape by force, and the defendant’s theory traversed the state’s contention, the case was tried by the court below, and the court, in its main charge, undertook fairly to present to the jury the theory of the case on which it was ■ tried by both .parties.” On my first study of the case I was inclined to think there was some merit in this contention, but a further review of the record has convinced me, as it has convinced the entire court, that under the authorities as applied to the facts of this case there is no merit in the proposition suggested by appellant. Burris v. State, 34 Tex. App. 387, 30 S. W. 785; Watts v. State, 30 Tex. App. 533, 17 S. W. 1092; Wood v. State, 27 Tex. Cr. R. 393, 11 S. W. 449; Peter v. State, 23 Tex. App. 684, 5 S. W. 228; Carter v. State, 30 Tex. App. 551, 17 S. W. 1102, 28 Am. St. Rep. 944.

All of the other questions arising on the appeal are fully covered in the opinions in the companion cases above named.

Finding no error in the record, it is ordered that the judgment of conviction be, and the same is hereby, in all things affirmed.

On Motion for Rehearing.

PRENDERGAST, J.

On December 7,1910, this court affirmed this case; Judge RAMSEY delivering the opinion. Afterwards a motion for rehearing was made, and because Judge HARPER was not a member of the court at the time the original opinion was delivered oral argument was permitted on the motion for rehearing. Still later, another change taking place in the personnel of this court, we granted a motion for a rear-gument on the motion for rehearing which was heard by the full court.

We have carefully considered the full record in this case, the motion for rehearing, the previous opinion therein, and the opinion in the two companion cases of Ross and White, recently decided by this court, and have reached the conclusion that the case was properly affirmed.

The motion for rehearing is therefore overruled.  