40 S.W.2d 83 | Tex. Crim. App. | 1931
The offense is aggravated assault; the punishment, a fine of $250 and 180 days confinement in jail.
The state's testimony was to the effect that appellant took prosecutrix and another young woman to his room, where he photographed them in the nude. Prosecutrix testified that appellant induced her to drink some intoxicating liquor, and persuaded her, by making promise of employing her as a model, to remove all of her clothing. Several pictures of the two women were taken, they being nude at the time. It was the further version of prosecutrix that, while she was sitting on appellant's bed in a nude condition, he approached her and sat down by her; that after she had dressed appellant asked her to permit him to kiss her female organ; that she pushed appellant away; that he placed his hand on her at the time and shoved her down on the bed. After prosecutrix requested appellant to desist, he procured a cab, paid the fare and sent prosecutrix and her companion home, the time being two o'clock in the morning. On first being questioned by her mother, prosecutrix told a false story. Prosecutrix was seventeen years of age, and her companion somewhat older.
The court charged the provisions of article 1139, P. C., as follows:
"You are charged that when an injury is caused by violence to the person, the intent to injure is presumed, and it rests with the person inflicting the injury to show accident or innocent intention. The injury intended may be either bodily pain, constraint, a sense of shame or other disagreeable emotions of the mind."
Appellant timely and properly excepted to this charge. No physical injury was inflicted. It has been held in some cases that, although there is no evidence of actual physical violence, it is not error to charge the provisions of article 1139, supra. It appears that these cases were assaults of an indecent character by an adult male upon a female. See Young v. State, 31 Tex.Crim. Rep.,
Appellant sought in a special charge properly and timely presented to have the jury instructed, in substance, that if he did not intend to injure prosecutrix, but had probable ground to believe that his attempts to become familiar with her were agreeable he should be acquitted. We quote from Weaver v. State, 66 Tex.Crim. Rep.,
In view of the evidence, we do not believe the court was warranted in declining to give the charge.
The judgment is reversed and the cause remanded.
Reversed and remanded. *16
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.