From the circuit court of Covington county.

Hon. Robert L. Bullard, Judge.

Spell, the appellant, a negro, was indicted and tried for an attempt to rape, convicted, and sentenced to the penitentiary for ten years, and appealed to the supreme court.

The prosecutrix, a Madame Quick, testified that she was aroused from her sleep at night by some one touching her body, which was partially uncovered; that she dimly perceived some one upon her bed, leaning over her; that on her screaming the person retreated, jumping through an open window, and disappeared, and that she could not say who the person was, whether a white person or a negro. The marshal of the town of Collins testified that certain shoes having peculiar indentations in the heels, belonged to appellant, were found in his possession, and fitted some tracks which he traced from the window of the house where prosecutrix claims to have been assaulted to the home of appellant. Appellant offered no evidence.'

There was no evidence to sustain a conviction of any kind against the appellant. Even if the question of identity of the appellant be eliminated, bow can it be claimed that tbe offense was an attempt to rape, rather than a mere assault or a mere solicitation for sexual intercourse? Under the meager facts tending to incriminate appellant the court below should have instructed the jury to find for the appellant. Saddler v. State 12 Tex., 194; Dorsey v. State, 108 Ga., 477; State v. Massey, 86 N. C., 658. As said in the opinion of the court in Green v. State, 67 Miss., 326 (s.c., 7 South. Rep., 326), “unless violent presumptions are drawn from the rape instinct of the African, the verdict is wholly unsupported by the evidence.”

As there was no evidence to support the conviction, or even in any way to connect the appellant with the alleged offense, the case should be reversed. Anderson v. State, 82 Miss., 784 (s.c., 35 South. Rep., 202); Monroe v. State, 71 Miss., 196 (s.c., 13 South. Rep., 884) ; Harvey v. State, 26 South. Rep., 931.

The only evidence offered by the state to connect the appellant with the alleged crime was the testimony of the town marshal to the effect that a pair of shoes belonging to appellant, and found in appellant’s home the morning after the offense, fitted certain tracks leading from the window of Madame Quick’s dwelling house toward appellant’s home. The marshal testified that he only tried the shoes in “several” of the tracks, not all of them. There was no testimony to show when these tracks were made. They may have been made several days before the pretended assault. Oertainly such circumstantial evidence was insufficient to sustain a conviction on a charge so serious as this against appellant. Caleb v. State, 39 Miss., 721; Pitts v. State, 43 Miss., 472; Johns v. State, 24 Miss., 569.

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