Frank Floyd v. The State, 29 Tex. Ct. App. 341

HURT, Judge. This is a conviction for aggravated assault and battery. The conviction can be sustained alone upon the truth of one fact, which is that the appellant intended to injure the feelings'of the proser cutrix, then Miss A. O. Forehand, who has since married Mr. William Phillips. She says that appellant took hold of and threw her on the ground, pulled up her clothes, and made indecent proposals to her, which were rejected, she saying to him,'“Quit, I will not do it.” The use of any unlawful violence upon the person of another, with intent to injure, is an assault and battery.

Two things must concur—the one physical and the other mental—the act and the intent. There must be a physical act done which takes effect upon the person of the one assaulted. To this physical act must be added an accompanying intent to injure. . The injury may be to the feelings or mind as well as to the person. When an injury is in fact inflicted to the feelings or the mind the intent to injure is presumed.

The vital question, when viewed in the light of the evidence in this -case, is, did the defendant intend to injure the feelings by producing in the mind of Miss Forehand a sense of shame or any other disagreeable «motion? If he did not, or rather if this fact is not proved, he would not be guilty, though a sense of shame or other disagreeable emotion of the ■mind was produced by the acts, etc., of the defendant. If a sense of •shame or other disagreeable emotion was in fact produced by the violence used by defendant upon her person, accompanied by an indecent proposal, the intent to injure is presumed.

This, however, is not a conclusive presumption. It is open to proof, and the real fact may be shown. But when the State clearly shows the injury the presumption of intent to injure arises, and the burden shifts to the accused, and he must prove accident or innocent intention. How, the State proposes to prove intent to injure by showing that in fact Miss Forehand was injured, and by the presumption of the statute. This is legitimate and proper. But the injury in fact must be clearly shown. This can not be presumed.

Bearing upon this matter the court charged the jury as follows: “ When an injury is caused to the person the intent to injure is presumed, and it rests with the person inflicting the injury to show the accident or innocent intention.” Abstractly this is correct; but this charge assumes the injury, which under the facts of this case was not warranted, because the evidence renders it doubtful whether Miss Forehand’s feelings were injured.

Under the facts of this case the charge should have been that “if the jury believed from the evidence that an injury had been inflicted, then the presumption obtained, and it rests with the accused to show accident or innocent intention.” Counsel promptly excepted to the charge given, and we think the exception was well taken. Again, the court gave the definition of an assault and battery, of which, of course, the intent to injure is a part. But counsel requested an instruction directly applying this element of the ofíense to this case. This was rejected by the court and defendant excepted.

In this there was also error, the intent to injure, viewed in the light of the evidence, being the vital question in the case. For these errors the judgment is reversed and the cause" remanded. Reversed and remanded. Judges all present and concurring.