Opinion
No. 8166.
Delivered April 22, 1925.
Assault to Rape — Charge of Court — Aggravated Assault — Not Submitted — Error.
Where on a trial for an assault to rape, the issue of an aggravated assault is raised by the evidence, or by a lack of evidence, it is reversible error for the court to fail to define an aggravated assault, and submit that issue. Following Everett v. State, 199 S.W. 631 and other cases cited.
Appeal from the District Court of Denton County. Tried below before the Hon. C. R. Pearman, Judge.
Appeal from a conviction of an assault to rape; penalty, two years in the penitentiary.
Robert H. Harkness, of Denton, for appellant.
Tom Garrard, State's Attorney, and Grover C. Morris, Assistant State's Attorney, for the State.
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, 199 S.W. 631; Taylor v. State, 50 Tex.Crim. Rep.. Also, see sec. 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.
Reversed and remanded.
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.