Graybill v. State

While I concur in the disposition of the case made by Judge DAVIDSON, I will state more fully my views:

The conviction was general, and, if the proof justified, it could be maintained under either the first or fourth count of the indictment. It is conceded the prosecutrix was under 15 years of age, and was not the wife of appellant. The evidence tends to show that he made an assault on her; that is, he put his hands on her without her consent, evidently with intent to persuade her to copulate with him. She not only refused, but resisted his attempt, and thereupon he desisted. Unquestionably there was lacking here that sufficient force establishing the intent of appellant to copulate with prosecutrix without her consent which is required by law. As was said in Dockery v. State, 35 Texas Criminal Reports, 487: "To constitute the offense of an assault with intent to rape, it must appear from the evidence, beyond a reasonable doubt, that the accused intended, if it became necessary, to force compliance with his desires at all events, regardless of any resistance made by his victim." And see Pefferling v. State, 40 Tex. 486; Ellenberg v. State,36 Tex. Crim. 139. In order to constitute rape on a girl under 15 years, with her consent, there must be an assault, and the use of force (the same character of force required in an assault, the want of consent not being a necessary element), and this force carried far enough to establish the ulterior intent of appellant to have carnal intercourse with prosecutrix with her consent. Now in this case prosecutrix never did consent, and, as stated above, when she resisted, appellant withdrew, and did not prosecute his attempt any further. At the most the force used was only with intent to persuade her to have carnal intercourse with him. This she declined, and there was therefore no manifestation of an ulterior intent on his part to copulate with her by the use of force, either with or without her consent. From the State's theory, he was evidently guilty of an indecent assault, but no more.