Aрpellant was convicted of an aggravated assault, and his punishment assessed at a fine of $25, and prosecutes this appeal.
The indictment charges the assault to have been committed by appellant on one A. T. Bobertson, “an officer, to wit, a deputy sheriff of Collin County, Texas, and then and there in the lawful discharge of the duties of said office, and the said C. E. Brown then and 'there being informed and knowing that the said A. T. Bobertson was then and there an officer discharging an official duty,” etc. The facts proven show that A. T. Bobertson in January, 1899, received an appointment in writing as deputy sheriff from the sheriff of Collin County Texas, but it was not shown that the constitutional oath of office was taken by said Bobertson, and it was not shown that hе complied with article 4896 of the Revised Statutes, with regard to having his appointment recorded in the office of the county clerk. The evidence further tends *418 to show that the allеged assault was committed by appellant on Robertson while said Robertson was- arresting one Proffet for a breach of the peace, and while he had said Proffet and аppellant in custody, having previously arrested appellant for interfering in the arrest of Proffet.
Appellant contends that subdivision 1, article 601, Penal Code, making an assault on an officer engaged in the discharge of his duty an offense, refers to officers de jure, and not de facto; and he objects to the testimony of the State introduced for the purрose of showing that Robertson was a de facto officer. He further objected to the charge of the court, which instructed the jury that Robertson was an officer, within the contеmplation of the statute, insisting that inasmuch as the testimony did not show he was an officer de jure, but at the most only a de facto officer, this matter should be left to the jury, under approрriate instructions. We can not agree to either of these contentions. The cases of Alford v. State, 8 Texas Criminal Appeals, 545, and Blair v. State, 26 Texas Criminal Appeals, 393, which are relied upon by counsel, do -not determine this question in favor of appellant. In Alford’s case the character claimed by the officer was that of a deputy marshal of Fort Worth, or bailiff of the grand jury. The court say there is no such office as deputy marshal of a city or town, and the temporary office of bailiff of the grand jury expired when the grand jury wаs previously discharged, so that the claim of White, the deceased in that case, as an officer, to arrest appellant, could not be sustained. He was neither a de jure nor a de facto officer. Moreover, the decision appears to be based upon the illegality of the warrant. In Blair’s case, appellant was charged with сarrying a pistol, and attempted to justify as an officer. The proof shows that he formerly lived in Val Verde County; that some two years before he had an appointment from the sheriff of Val Verde County as a deputy sheriff or guard; that he was at the time of the alleged offense living in Kinney County, and had been employed seven or eight months prior to his arrest as a сlerk in a mercantile establishment in the latter county. There was no claim here that he was ever an officer of Kinney County, either de jure or de facto, nor that he was in Kinney County in the discharge of any duty as a deputy sheriff of Val Verde County when he was carrying the pistol. In this case the court say. “Evidently appellant was not a deputy sheriff, and could claim nо authority to carry a pistol by virtue of the paper introduced in evidence.” As stated, neither of the cases is authority for the contention of appellant in this case. The decisions indicate that, before one can be a de facto officer, there must be some office which he could hold de jure. However, this is not a new question in this State. In Weatherford v. State, 31 Texas Criminal Reports, 530, which in its facts is much like the present case, the court, after discussing the authorities, expressly hold that a de facto officer was authоrized to make an arrest and to summon,a posse to aid him; that while so engaged such officer could not be held to act at his own peril or outside his duties because of a dеfective or non-record of
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the officer’s right or title to his office. And see Dane v. State,
It is also strenuously insisted by appellant that the court erred in failing to instruct the jury, as requested by him, that the acts of appellant must have indicated an intention to injure the assaulted party, Bobertson, before they could find him guilty of an assault. We have examined thetharge of the court, and it nowhere tells the jury that violence upon the person of аnother must be with intent to injure him, before such person can be guilty of an assault. There may be cases where the court would be relieved from a charge upon this issue—that is, where thе proof showed an obvious injury to the person; for in such case the intent to injure might be presumed, and under the statute it would then rest with the person inflicting the injury to show the accident or innоcent intention. But where the violence used is of a slight character, or there is any suggestion that it was unintentional *420 or accidental, the court should give the jury a charge to the effect that such violence must be with intent to injure. See Ware v. State, 24 Texas Crim. App., 521; McConnell v. State, 25 Texas Crim. App., 329; Floyd v. State, 29 Texas Crim. App., 341; Rutherford v. State, 13 Texas Crim. App., 92. As stated bеfore, the violence here was of a slight character. If the conviction is to rest upon any actual violence, it was merely in pushing by appellant of the prosecutor, Robertson. Prosecutor says, “Defendant pushed me back, and was trying to get at the door, and drew back like he was going to strike me.” On cross-examination he says, “Defendant did not strike me, nor attempt to-strike me, but he drew back like he was going to strike me;” that, when he told defendant to stop, he said, “All right”—that he only wanted to get out to give bond. Appellant himself testified: That he tried to persuade Proffet to go with Robertson to the magistrate’s office, and finally tried to take him there himself, but was unable to do so. He denies that while at the magistrate’s office he pushed Robertson or attempted to strike him. That he did try to leave the office, and get Frank Douglas to go on his bond. That Robertson told him to stop, and he did so. That he did not, whilе on the street or in the magistrate’s office, attempt to injure or hurt, or intend to injure or hurt, Robertson. How, on this state of facts, we think it was the duty of the court to have given the instruction on the intent to injure, as requested by appellant; and for the failure to do so the judgment is reversed and the cause remanded.
Reversed and remanded.