evidence from doctor that complainant was “highly distraught” and clothes were torn and from family members corroborating doctor’s testimony and as to bruises on complainant’s throat supported conviction for assault with intent to rape
How later courts described this case
- evidence from doctor that complainant was “highly distraught” and clothes were torn and from family members corroborating doctor’s testimony and as to bruises on complainant’s throat supported conviction for assault with intent to rape
Written by the judges who cited it.
The opinion
ON MOTION FOR REHEARING.
GRAVES, Presiding Judge.
The appellant’s motion for rehearing is concerned with the fact that he claims that at the time of the commission of the al *36 leged offense he had no present intention to ravish the prosecutrix despite her resistance, and that a careful reading of the facts would so convince us. We have again carefully read the facts and also the cases cited by the appellant in support of his propostion.
It will be noted that it is not necessary for the completed act to show the present intention to perform that act. Appellant is charged with an assault with intent to commit the offense of rape. He contends that he would not be guilty under the charge herein because of the fact that he eventually abandoned the intent of his assault.
It has oftentimes been held, and recently so, that the mere fact of the failure to effect his purpose would not necessarily mean that he did not intend to commit the offense. If it was his intent to rape at the time that the assault was perpetrated upon the female, he would be guilty regardless of the fact that he might have failed to effectuate his purpose. See Tucker v. State, No. 25,688, recently decided (Page 259, this volume), 247 S. W. (2d) 901 , also 35 Tex. Jur. p. 893, sec. 18, and cases cited.
As to what the intent of the appellant was at the time of the assault, the testimony of the injured party, which was doubtless of assistance to the jury in finding such, is as following:
“Leon stepped over toward the table and I started to go out the back door still calling Clarence and Leon grabbed me and had my hands behind me and I was struggling and trying to get aloose and he threw me down on the kitchen bed and told me that he would get it the way he wanted it. I was fighting him trying to get aloose and he put his knee in my stomach and he was choking me and he said he was going to get it, that I had just as well behave, that he was going to get it — he would kill me if I didn’t give it to him.”
The motion for rehearing is overruled.