The opinion
HURT, Presiding Judge.
Appellant was convicted of an assault with intent to rape, and his punishment assessed at three years’ confinement in the penitentiary, and prosecutes this appeal. A very remarkable. procedure was had in this case, without any authority in law. It appears that the wife of the defendant was before the grand jury as a witness for the prosecution. This offense is not of that character as would permit the wife to become a witness against the husband. Coun- • sel for appellant, because of the fact that the wife was a witness before the grand jury to procure the bill, moved to set aside the bill. This motion was overruled. In this there was no error. We cannot look behind the return of the grand jury, and set aside an indictment because improper evidence has been received, or testimony of witnesses taken .who were not competent to testify in the case. To constitute the offense
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of an assault with intent to commit rape, it must appear from the evidence, beyond a reasonable doubt, and to this court with reasonable certainty, that the accused intended, if it became necessary, to force compliance with his desires at all events, and regardless of any resistance-made by his victim. See Rex. v. Lloyd, 7 Car. & P., 316; Reg. v. Wright, 4 Fost.
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F., 967; Com. v. Merrill, 14 Gray, 415 ; Reynolds v. People, 41 How. Prac., 179 ; Joice v. State, 53 Ga., 50 ; State v. Burgdorf, 53 Mo., 65 ; Mahoney v. People, 43 Mich., 39 ; 4 N. W., 546 ; State v. Hagerman, 47 Iowa, 151 ; Taylor v. State, 50 Ga., 79 ; Brown v. State, 27 Tex. Crim. App., 330; Shields v. State, 32 Tex. Crim. Rep., 498. The question before us is, whether the testimony in this case fills the measure of proof in this particular. We are of the opinion that it does not, and therefore the motion for a new trial, upon the ground of the-insufficiency of the testimony, should have been sustained. The judgment is reversed, and the cause remanded.
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Reversed and Remanded.
Davidson, Judge, absent.