Duckett v. State , 149 Tex. Crim. 100 ( 1946 )

At a former day of this term of court an opinion was handed down reversing this cause. The State filed a motion for rehearing. Upon consideration of this motion, the former opinion is withdrawn and the following is substituted in lieu thereof:

The appeal is from a conviction on a charge of assault to rape.

The record before us, as certified by the trial judge, shows that at the time of the commission of the alleged offense, the prosecutrix was the wife of the appellant. Ordinarily a husband cannot be guilty of assault with intent to rape his wife. Frazier v. State, 86 S.W. 754.

Because no violation of law is shown, the judgment of the trial court is reversed and the cause is remanded. The State's motion for rehearing is overruled.