
    (86 Tex. Cr. R. 469)
    HAYS v. STATE.
    (No. 5544.)
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1920.)
    1. Burglary «=>9(1) — Entry with intent to COMMIT RAPE.
    Entry into a woman’s sleeping apartment by cutting a screen door was burglarious if made for the purpose of rape upon ber.
    2. Criminal law <@=>1159(2) — Unsupported VERDICT WILL BE SET ASIDE.
    The Court of Criminal Appeals hesitates to interfere with the verdict in any case, but will do so when there is no sufficient evidence to sustain it.
    3. Burglary «=>41(1) — Evidence not sustaining CONVICTION OF'BURGLARY WITH INTENT TO COMMIT RAPE.
    Evidence held insufficient to sustain conviction of burglary with intent to commit rape, defendant having merely cut his way into the woman’s sleeping apartment through a screen door, and, when she awakened, having used no force, despite opportunity.
    Appeal from District Court, Smith Cojrnty; J. R. Warren, Judge.
    Leonard Hays was convicted of burglary with intent to commit rape, and he appeals.
    Reversed and remanded.
    Simpson, Lasseter & Gentry, of Tyler, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

In this case appellant was convicted of burglary of a private residence, with intent to commit the offense of rape.

We find in the record but one question of sufficient importance to justify our consideration, and that is as to the sufficiency of the evidence.

■ Appellant was charged with breaking into the private residence of Mrs. E. C. Butter-field with intent to commit rape upon her. The proof showed that her husband was temporarily. away from home, and had procured appellant to stay at the house during his absence, as. protection for Mrs. Butterfield and her small child. On the-second night of such absence Mrs. Butterfield says she was awakened from sleep to find appellant bending over her and holding her wrist, that when she moved he said, “This- is Hays,” and that she then jerked away from him and said, “You dirty dog! What are you doing in here?” and that he at once ran out of the room; she dressed herself and little child, and went at once to the house of a tenant, and told him what had occurred; that this man went to the part of the Butterfield home occupied by appellant, and found him, as said witness testified, simulating sleep. Said witness inquired of appellant what he meant by his conduct, to Which appellant replied that, if he went into Mrs. Butterfield’s room, he must have been walking in his sleep.

There is no question but that a screen door opening into Mrs. Butterfield’s sleeping apartment was cut, and that such entry was burglarious if made for the purpose of rape upon her as charged in the indictment.

The charge of the trial court .was exceptionally full and fpir, and submitted to the jury the question of appellant’s purpose in entering the house, instructing them that, if he intended to have carnal intercourse with the woman by force, he would be guilty, but that, if at the time of such entry his intention was to have intercourse with her with her consent, he would not be guilty.

We hesitate to interfere with a verdict in any case, but, when there appears to us no sufficient evidence, we will so hold. Aside from the fact of entry by cutting the screen, nothing appears in the record to indicate an intent to use any force to accomplish the purpose of sexual intercourse with the woman. There is no dispute of the fact that áppellant was in the room, by the bedside of the woman, and with his hand upon her wrist. However unjustifiable such action on his part might be, it appears that he did not endeavor to disguise or conceal his identity, or in any way to use force after Mrs. Butterfield’s actions and words at the time she awoke, but, on the contrary, the testimony of Mrs. Butterfield herself shows that he disclosed his identity, told who he was, and promptly desisted from whatever design he may have had, and withdrew from the room. We can only arrive at the appellant’s intention at the moment of entry into the room, by his subsequent acts, and to our mind the evidence of the actions of appellant after the woman awoke falls short of supplying that proof evidept of what his intention was which should exist in every case before any person be deprived of his liberty. Mrs. Butterfield was alone in the house, except for her little* child, which fact was known, to appellant, but he is not shown to have made any effort to overcome resistance or to prevent an outcry on the lady’s part. No threat or presence of any. kind of weapon is shown. We cannot give our approval of this verdict, in the light of the long line of authorities in this state holding facts insufficient to make out this character of charge, which are equally potent and cogent as those in the instant case. Mason v. State, 47 Tex. Cr. R. 403, 83 S. W. 689; Mitchell v. State, 33 Tex. Cr. R. 575, 28 S. W. 475; Coleman v. State, 26 Tex. App. 252, 9 S. W. 609; Hamilton v. State, 11 Tex. App. 116;. Ford v. State, 53 S. W. 847.

Because of the insufficiency of the evidence to support the verdict, the judgment of the trial court is reversed, and the cause remanded. 
      <S=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     