¶1The charge in the indictment is an assault with intent to commit rape by means of force alone. It is very clearly shown by the evidence that the means used to accomplish the intended crime was fraud and not force. It was by means of the use of chloroform upon the sleeping woman, that the rape was attempted and intended to be accomplished. Such a means comes within the meaning of fraud as defined by the statute, and can not be construed to be force. (Penal Code, arts. 529-531.) The court in its charge properly limited and restricted the jury to a consideration of the offense charged in the indictment, that is, an assault with intent to commit rape by means of force. There is not sufficient evidence to warrant a conviction for the offense as charged in the indictment, and, although the evidence is amply sufficient to sustain a conviction for the offense of an attempt to commit rape by means of fraud this conviction can not stand because the indictment does not allege such offense. It is not competent to indict for an assault with intent to rape, and convict upon evidence establishing an attempt to rape by fraud.) Williams v. The State, 1 Texas Ct. App., 90.)
¶2An assault with intent to rape can only be established by proof of force or attempted force. This offense can not be committed by means of threats or fraud. The offense of an attempt to commit rape may, however, be committed by the use of such means. (Burney v. The State, 21 Texas Ct. App., 565.)
¶3Because the verdict of the jury is contrary to the charge of the court, and is not supported by the evidence, the judgment is reversed and the cause is remanded.
¶4Reversed and remanded.