Attaway v. State

271 S.W. 920, 100 Tex. Crim. 92, 1925 Tex. Crim. App. LEXIS 345

• Court: Court of Criminal Appeals of Texas
• Decided: April 22, 1925
• Docket: No. 8166.
• Status: Published

Opinion

BERRY, Judge.

Appellant was convicted in the district court of Denton County for the offense of assault with intent to commit rape by the use of force, and his punishment was assessed at confinement in the penitentiary for, a term of two years.

The evidence offered in the case to show sufficient force to constitute the offense charged is very meager and unsatisfactory. The testimony of the prosecutrix clearly raises the issue of aggravated assault, and proper exception was reserved by appellant to the court’s failure to define an aggravated assault in submitting this issue to the jury. The charge nowhere attempts to define what is meant by an aggravated assault, and our State’s Attorney in his brief states that the trial court committed reversible error in failing to give a definition of this offense in his charge. A careful examination of the record convinces us that the State’s Attorney is correct in this particular. Everett v. State, 199 S. W. 631; Taylor v. State, 50 Texas Crim. Rep. 362. Also, see sec. 1712, Branch’s Penal Code, for a citation of authorities on this question.

Because of the error of the court in failing to define, an aggravated assault, it is our opinion that the judgment should be reversed and the cause remanded.

Reversed and remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the , Court of Criminal Appeals and approved by the Court.