Miller v. State , 50 Tex. Crim. 589 ( 1907 )

Appellant was convicted of burglary with intent to rape, and his punishment assessed at two years confinement in the penitentiary.

The first count of the indictment charged an attempt to rape; the second charged burglary with intent to commit rape. The jury convicted appellant under the latter count. The only grounds in the motion for new trial are that the verdict of the jury is contrary to the law and the evidence. The evidence shows in substance that the defendant saw the prosecutrix in her home; went to the door without her consent and opened same, and prosecutrix run into an adjoining room and grabbed a pistol, defendant following her; prosecutrix pointed a pistol at appellant, same not being loaded, which fact, however, appellant did not know, and then prosecutrix becoming further alarmed ran out of the house, thereby getting out of the reach of appellant. Appellant took nothing out of the house, though there was no one in it to prevent him doing so. No evidence of any other felonious intent is shown except an attempt to rape the prosecutrix. We think the evidence is sufficient to support the conviction, and that he burglariously entered the house by opening the door and pursued the woman with the intent to have carnal knowledge with her is abundantly established. Finding no error in the record, the judgment is affirmed.

Affirmed.