test asserting checkout should not recreate deleted files

When you have a delete staged and you try to check out a tree that has a modification to that file, the file is unexpectedly recreated.

Core git:

    >git rm a.txt
    rm 'a.txt'

    >git checkout 2ad1c5ac1d
    error: Your local changes to the following files would be overwritten by checkout:
            a.txt
    Please, commit your changes or stash them before you can switch branches.
    Aborting

So I would expect a failure of some sort here?