72 S.W. 184 | Tex. Crim. App. | 1903
Appellant was convicted of an aggravated assault, and his punishment assessed at a fine of $25; hence this appeal.
The only question involved in this case is whether or not the facts show an assault. The prosecutrix, a girl about 14 years of age, was the only eyewitness to the transaction. Appellant, who was a married man, lived a near neighbor, and some intimacy existed between the families, and prosecutrix was in the habit of visiting his house. On the particular occasion appellant called at the house where prosecutrix lived, to return a saw which he had borrowed. Prosecutrix was engaged in sweeping the room. Appellant had some conversation with her, and while she was near a table, sweeping, he walked up to the table, and, as she states, made a "kissing sign at her" — that is, "he puckered his lips and smacked them." That he did this twice, but did not touch her, and made no effort to kiss her or use any violence. She says that she stepped back and said: "Now look what you have caused me to do. I nearly broke ma's specks. If that is the best you can do, you had better go home." The specks were lying on the floor. After this he left, but she states that he came back where she was, and told her to say nothing about it; that it might make trouble. Witness further states that appellant made no improper act or remark to her, and had never said anything improper to her. At the time this occurred he was standing at the side of the table, and she was standing at the end of it. This put them some three or four feet apart. An assault is defined to be "any attempt to commit a battery, or any threatening gesture showing in itself, or by words accompanying it, an immediate intention, coupled with the ability, to commit a battery." If appellant by his acts had manifested any intention at the time to lay hands on prosecutrix and to kiss her without her consent, his acts and conduct would unquestionably have made an assault; but we fail to gather from the statement of what occurred, as contained in the record, that he did *465 anything at the time showing that he intended to take a kiss without the consent of the prosecutrix. What he did could not be construed into any more than asking prosecutrix to give him a kiss, and even if he had done this, without manifesting some ulterior purpose to use violence to force her to comply with his request, it would not amount to an assault, for there would be lacking the essential element, "showing by his acts and conduct an immediate intention to commit a battery." It may have been, and doubtless was, improper for him to make the "kissing sign" to prosecutrix, as she terms it, or suggest that he would like to kiss her; but this, under the circumstances, did not render him guilty of an assault. Flournoy v. State, 25 Texas Crim. App., 244; Lee v. State, 34 Tex.Crim. Rep..
The judgment is reversed and the cause remanded.
Reversed and remanded.
