Conviction in this case is for an assault with intent to rape. The charging part of the indictment is as follows: That Si Jones “did unlawfully and feloniously, with force and arms, make an assault upon Agnes Podraza, she, the said Agnes Podraza, being then and there a woman, and did then and there choke, wound and bruise the said Agnes Podraza, with the unlawful and felonious intent on the part of him, the said Si Jones, without the consent of, and against the will of, the said Agnes Podraza, to ravish and carnally know.”

Eape upon a woman (not a child) is the carnal knowledge of a woman without her consent, obtained by force, threats or fraud. An assault with intent to rape a woman is any attempt to have carnal knowledge of a woman without her consent, by force, threats or fraud; or an assault with intent to rape is constituted by the use of any threatening gesture, showing in itself, or by words accompanying it, an immediate intention, coupled with an ability, to have carnal knowledge of a woman, without her consent, by force, threats or fraud.

In an indictment for an assault to rape, the pleader would do well, prevent lengthy discussions, and save time to this court, by paying some attention to the elements entering into the composition of rape. The following precedent, we think, would be correct and perfectly safe: “That John Jones, in and upon Jane Smith, a woman, did make an assault with the intent her, the said Jane Smith, by force, threats and fraud to carnally know; against the peace,” etc. We suggest that if force be the means intended, insert by force, and so with threats and fraud; the better practice here being to insert each conjunctively.

But, does this indictment allege what means were intended to accomplish the act? It charges that the assault was “ with intent to ravish and carnally know,” and in Davis v. The State it is held that the charge “did ravish” is equivalent to an allegation that the assault was with force and against the consent of the woman. (42 Texas, 226; 15 Texas Ct. App., 80.)

The scene of this supposed assault to rape was not less than a mile from any house, or any person other than the parties thereto, so far as seen or inferred by this record. The case as made by the testimony of the prosecutrix is as follows: She says she knew the *489defendant. Saw him at a distance coming after or behind her, after she passed Terrell’s mill. That, on the road from Mavasota to her father-in-law’s house, a mile from Green Moore’s field, she heard footsteps behind her, and turned and saw defendant, who caught her by the heels and pulled her down, and sprang on her and seized her by the throat; that she cried out, when defendant seized her by the throat with both hands, threw her down and put his knee on her breast, and that she was choked so she thought she would die. That defendant then jumped up and went off, he going one way and she another. That defendant did not attempt to raise her clothes; that defendant did nothing more than throw her down, put his knee on her breast and choke her. These are the substantial facts, and all of the facts sworn to by the prosecutrix. There was no other witness to the transaction.

This defendant stands convicted of an assault with intent to rape. To support this conviction there must be in evidence facts, beyond a reasonable doubt, that defendant did assault Agnes Podraza, and that such assault was made with the intent by force to have ca?mal hnowledge of the prosecutrix. Mow if there be a fact in this record tending to show that it was the purpose of the defendant to have carnal hnowledge of this woman, we have not been able to discover such fact. Each and every fact is consistent with the commission of an aggravated assault and battery. Indeed there is not the slightest evidence which takes the case out of the boundary or territory occupied by an aggravated assault and battery.

We are therefore of the opinion that the evidence does not justify this conviction, and that the judgment must be reversed and the cause remanded.

Reversed and remanded.

[Opinion delivered June 17, 1885.]