
    ATTAWAY v. STATE.
    (No. 8166.)
    (Court of Criminal Appeals of Texas.
    April 22, 1925.)
    Rape <&wkey;59 (23) — Failure to define aggravated assault, in prosecution for assault with intent to commit rape by use. of force, held re- ■ versible error.
    In prosecution for assault with intent to commit rape by use-of force, prosecutrix’s testimony clearly raising issue of aggravated assault, court’s failure to define an aggravated assault in submitting such issue to jury held reversible • error.
    Commissioners’ Decision.
    Appeal from District Court, Denton County ; C. R. Pearman, Judge.
    Claude Attaway was convicted of assault with intent to commit rape by use of force, and he appeals.
    Reversed and remanded.
    Robt. H. Hopkins, of Denton, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

Appellant was convicted in the district court of Denton county for the offense of assault with intent to commit rape by the use of force, and his punishment was assessed at confinement in the penitentiary for a term of two years.

The evidence offered in the case to show sufficient force to constitute the offense charged is very meager and unsatisfactory. The testimony of the prosecutrix clearly raises the issue of aggravated assault, and proper exception was reserved by appellant to the court’s failure to define an aggravated assault in submitting this issue to the jury. The charge nowhere attempts to define what is meant by an aggravated assault, and our state’s attorney in his brief states that the trial court committed reversible error in failing to give a definition of this offense in his charge. A careful examination of the record convinces us that the state’s attorney is correct in this particular. Everett v. State, 82 Tex. Cr. R. 407, 199 S. W. 631; Taylor v. State, 50 Tex. Cr. R. 362, 97 S. W. 94, 123 Am. St. Rep. 844. Also, see section 1712, Branch’s Penal Code, for a citation of authorities on this question.

Because of the error of the court in failing to define an aggravated assault, it is our opinion that the judgment should be reversed and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.  