Fewox v. State , 49 Tex. Crim. 172 ( 1905 )

Appellant was convicted of an assault with intent to commit rape, and his punishment fixed at two years confinement in the penitentiary. Appellant complains of the following charge: "The injury intended may be either bodily pain, constraint, or sense of shame or other disagreeable emotion of the mind." This charge has been specifically condemned in Carter v. State., 44 Tex. Crim. 312; 6 Texas Ct. Rep., 263, and Hudson v. State, decided at the present term. We think, in addition to the above, that the evidence raises the issue of aggravated assault, since if appellant did not use all the force necessary to overcome resistance in the assault, he would only be guilty of an aggravated assault, and the court should have so charged.

For the errors discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.