¶1This appeal is prosecuted from a conviction for assault with intent to rape, the punishment fixed for the verdict being two years in the penitentiary.
¶2The assault 'was made at night, during the absence of the girl’s mother and step-father. When they returned, during the night, nothing was said as to what had occurred in their absence, but the girl made complaint to her mother the next morning. The mother being a witness, she was allowed to testify as to the particulars of the complaint made to her by the girl. Under repeated decisions of this court such evidence is inadmissible except where such statements by the injured party are contemporaneous with, and illustrative of, the assault, and, being so, are res gestee. In this case this was not so.
¶3A proper predicate having been laid, the defense introduced in evidence the testimony of the prosecutrix upon the examining trial, which contained statements that tended to prove that it was not the object, or intention, of the defendant to penetrate the person of the assaulted party. Upon this branch of the case a charge was asked, and refused, to the effect that there could be no rape without penetration, and no assault with intent to rape without an intent to penetrate;and that, if the jury believed that there was no intent to penetrate, the defendant should be acquitted. The evidence alluded to above presented an issue in *672the case, and it was the peculiar province of the jury to weigh such evidence and determine such issue under proper instructions from the court, and, in the absence of any instruction in the general charge specially submitting this issue, the refusal of those requested was fundamental error.
¶4This same evidence called for a charge upon aggravated assault and battery; for, however outrageous and indiscreet the assault, the intent to penetrate the person is the element which alone can make the crime ah assault with, intent to rape. The judgment is reversed and the cause remanded.
¶5Reversed and remanded.