Taff v. State

DAVIDSON, Presiding Judge.

Appellant was convicted of assault to rape, his punishment being assessed at ten years confinement in the penitentiary. The facts will be set out in another portion of the opinion.

1. The court charged the jury on assault to rape by force, and then instructed the jury that if the appellant did not intend to commit rape by force they would convict him of aggravated assault. Appellant, in this connection, asked the following charge, which, under the peculiar facts of this case hereafter set out, we are of opinion ought to have been given:

“You are instructed that every assault committed by an adult male person upon the person of a female, does not constitute an assault with the intent t'o commit the offense of rape, but in order to make the offense an assault to rape the defendant must commit an assault upon the female with -the specific intent to have intercourse with her, and without her consent.

“An assault upon a woman, with the intent to have improper intercourse with her, but without the use of force and not without the consent of the woman, does not constitute the offense of assault to rape, no matter how offensive the defendant’s acts may be, or how aggravated the circumstances.

“Now if you believe from'the evidence that the defendant Magruder Taff committed an assault upon Selma Franke, if any assault was ever committed by the defendant, and that at the time he committed the assault, he intended to have carnal intercourse with Selma Franke, provided the said Selma Franke would submit to him and that he did not intend to have carnal intercourse with her the said Selma Franke, without her consent or by force, then you are instructed that this defendant would not be guilty of the offense of assault to rape, and if you so believe, it becomes your duty to acquit the defendant of this offense.”

Under the facts of this case the refusal of the court to' give this charge was error of such material character as requires a reversal of the judgment. The reporter will report such of the facts as may be necessary to show the applicability of this charge to the facts.

The judgment is reversed and the cause is remanded.

Reversed and remanded.