Selby v. State , 103 Tex. Crim. 499 ( 1926 )

The state has filed a motion for rehearing, urging that the evidence authorized the jury's finding that the assault was made with the specific intent to commit the offense of rape, citing in support of its contention Berry v. State, 44 Tex. Crim. 170,72 S.W. 170; Washington v. State, 51 Tex.Crim. R.,103 S.W. 879; Hightower v. State, 65 Tex.Crim. R.,143 S.W. 1168; Love v. State, 68 Tex.Crim. R., 150 S.W. 920. Duckett v. State, 68 Tex.Crim. R., 150 S.W. 1177. The three last cited cases involve assaults upon girls under the age of consent and we think may be distinguished from the present case on the facts. The Berry and Washington cases do support the state's contention in so far as one fact case can aid in weighing those of another. It must be borne in mind that it has always been held in assault with intent to rape that the evidence must show not only the assault, but that it is "also essential that the specific intent to rape be established by the evidence and that it must go beyond the mere possibility of such intent." Cotton v. State, 52 Tex.Crim. R., S.W. It must be admitted that in making application of this rule some of the cases are on close lines. In the opinion in Cotton's case will be found a collation of authorities illustrating the principle there announced. In addition may be noted Curry v. State, 4 Tex. Cr. App. 574; Dina v. State, 46 Tex.Crim. R., S.W.; Robatt v. State, 91 Tex.Crim. R., 239 S.W. 966. We commend the zeal of Hon. C. M. Chambers, district attorney, and his assistants in briefing the cases appealed to this court in which prosecutions have been conducted by them. It has been of great aid to the court and to our State's Attorney. In the present case, however, our opinion does not coincide with theirs. Applying as best we can the principle last above referred to in the present case we believe our original opinion reflects a correct conclusion.

The state's motion for rehearing is overruled.

Overruled.