Marthall v. State

DAVIDSOH, Judge. This conviction was for assault with intent to rape. About 1 o’ clock in the evening, while en route to a neighbor’s, the prosecutrix was passing a bluff of the creek,- when appellant suddenly approached her, with his person exposed. She ran a short distance, turned, and sought to return home, when appellant stepped in front of, and said to her, “Ho you don’t.” They were four steps apart. She then pursued her journey in the direction of and to her neighbor’s residence. Appellant followed slowly until she approached some timbers. As she reached the timber she ran, and was rapidly pursued until she reached and entered the inclosure of Mrs. Ridgway, where appellant stopped. At this point he approached within about six steps of the prosecutrix. When she reached the timber she was about 100 yards in advance of her pursuer. He displayed no arms, and the only means by which he could have made an assault was his hands. His defensive theories were alibi and mistaken identity; and his contention here is, the want of sufficient testimony to sustain the conviction. This appeal hinges primarily upon the sufficiency of the evidence to show that an assault was committed. Where an attempt is made to execute an intention which falls short of its consummation, a crime is committed. Upon this proposition the authorities are practically unanimous. This is true also under, our Penal Code. As this issue was not submitted under the charge on the trial, we pretermit a discussion of the question. The testimony excludes the idea that a battery was inflicted. Do the facts show an assault? We think not. An assault, under our code, is “any attempt to commit a battery, or any threatening gesture showing in itself, or by words accompanying it, an immediate intention, coupled with an ability to commit a battery.” Penal Code, art. 484. In order to constitute his acts an assault, appellant must have been within such distance of the prosecutrix as to place it w-ithin his power to commit a battery upon her by the use of the means with which he attempted it. Penal Code, art. 489, subdiv. 2. If he was at such a distance from her as that he could not reach her person by use of the means employed, he is not guilty of an assault. Penal Code, art. 489, subdiv. 3. How, what were the means employed by appellant? The record is silent upon the question.. He was at no time nearer her than four steps. He stepped in front of, and said to "her, as she undertook to return home, “Ho you don’t.” He did not even then seek to take hold of her, though nothing prevented his doing so. He could not have possibly reached her person with any portion of his body. We are not to be understood as holding that if he had been in a position to *26 commit the battery he would not be guilty of assault to rape. In order to constitute the offense of assault with intent to commit the crime of rape, it is essential that an assault be made, and this must be coupled with an intent to ravish. It has been held, that the chasing by a man of a woman who is alone in a private place does not necessarily raise an inference of an intent to rape. The State v. Donovan, 61 Iowa, 369. It has been held, in this State, that where the accused entered the room of the prosecutrix and called her by her given name, and, when she screamed, fled, that this was not sufficient to support a conviction for an assault with intent to rape. Carroll v. The State, 24 Texas Crim. App., 366. And this court recently held, that where the defendant entered the bedroom and touched the foot of the prosecutrix, and being discovered, fled, was not sufficient to constitute this crime. Mitchell v. The State; 33 Texas Crim. Rep., 575. See also Steinke v. The State, 33 Texas Crim. Rep., 65; Fields v. The State, 24 S. W. Rep., 907. It is beyond our province to deal with moral turpitude when not constituting a crime, and we have no offenses in this State other than as prescribed by the Penal Code. However outrageous or shocking to the more refined sensibilities of our nature the conduct may be, such facts do not constitute crime, and are not the subject of legal punishment unless denounced by the law-making power as being criminal and a punishment therefor has been prescribed. Offenses in this State are the result of legal enactment, and not of violated moral ethics. The judgment is reversed and cause remanded. Reversed and remanded. Judges all present and concurring.