Aрpellant was convicted of burglary: the indictment alleging that the entry into the house was made for the purpose of committing rape upon a named woman. The facts
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upon which thе verdict is predicated, in substance show, that on the night of the аlleged buglary, defendant entered the house and raised the sсreen fastened in the window opening into the room, where thе girl slept; that under the window was a trunk in the room, the top of which rеached a little above the top of the window sill; that aрpellant crawled in the window partly over this trunk, with his feet hanging out in the room behind him; that while lying in this position on the trunk he reached over with a stick, which he held in his hand, and undertook by means of the stick to rаise the night apparel of the girl lying on the bed. She sat up and spoke to him. He immediately withdrew. The girl further swears that a few momеnts afterwards, she saw defendant at a window on the outside, loоking through the slats of the blind; that she threw open the blinds and he ran awаy. This is the State’s case. Appellant’s defense was an alibi'. Cоncede the evidence in regard to alibi to be false, discredited at least by the jury, and that the girl’s testimony is true. In order to cоnstitute rape, there must be the specific intent to have intercourse with the woman without her consent and by force, and to overcome all resistance. As applied to the facts, unless defendant had the specific intent to commit the crime of rape upon the girl, the breaking of the house would not constitute burglary. The only evidence we have tending to prove such intent is the fact that, without touching her body with his person, and withоut fully entering the room, by means of the stick he undertook to raisе the night apparel or gown of the girl. It seems from the facts thаt the trunk and the bed were some five or six feet apart. Under the authorities and the statute in our State, there must be something more than is here disclosed to justify the jury in arriving at the conclusion that thе specific intent was there to commit rape. When discоvered appellant immediately fled. The girl was in the room by hеrself, defendant was thoroughly familiar with the house and the premises, having worked there at different times, as the employee оf the owner of the premises; and if he had intended to forcе himself upon the girl, situated and armed as he was, certainly therе would have been some other fact to show that determinаtion. Under the many authorities in this State, this .would not be sufficient to indicаte that appellant intended to force sexual intercourse upon the woman so as to constitute rape. Dinа v. State, 9 Texas Ct. Rep., 99; Coleman v. State, 26 Texas Crim. App., 252; Turner v. Stаte, 23 Texas Crim. App., 15; Hamilton v. State, 11 Texas Crim. App., 116; Mitchell v. State,
Reversed and remanded.