
    CLANCY v. STATE.
    (No. 7409.)
    (Court of Criminal Appeals of Texas.
    Feb. 7, 1923.)
    1. Assault and battery <&wkey;54 — Aggravated assault must be disagreeable to assaulted party to be punishable.
    In a prosecution for aggravated assault on prosecuting witness by placing accused’s hand on her leg while she was seated at a picture show, a refusal to charge that, if the jury believed from the evidence “that said assault' did not cause her any constraint or sense of shame or other disagreeable emotions of the mind, you will acquit the defendant,” was error.
    2. Criminal law <&wkey;388 — Testimony of expert-ments held improperly admitted, where no showing of similar conditions.
    In trial for aggravated assault on prosecuting witness by placing accused’s hand on her leg while she was seated at a picture show, it being claimed that accused’s hand was thrust under a seat beside him to the rear thereof, testimony of experiments made by the sheriff to prove that the hand of a person sitting in a seat in the theater could be thrust under the seat beside him so as to touch the leg of a person sitting behind, although material, was improperly admitted, where there was no showing that the seats in the theater were similarly constructed, and that the seats examined by the sheriff were similar to those occupied by accused and the prosecutrix.
    
      3. Criminal law <&wkey;730( 14) — Argument of prosecutor held prejudicial error not cured by instructions.
    In aggravated assault trial, a statement by the prosecutor to the jury, “I want to tell you -that when this assault was committed, the good citizenship of the town * * * was so outraged and believed in the guilt of defendant that the officers had to take the defendant away from that town,” was prejudicial error which was not cured by instructions to disregard such argument. «
    Appeal from Kaufman County Court; W. P. Williams, Judge.
    R. D. Clancy was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    Thos. Rv Bond, of Terrell, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the county court of Kaufman county of aggravated assault, and his punishment fixed at a fine of $250 and 90 days in the county jail.

Two young women in the city of Terrell, Tex., went into a picture show in the daytime, and presently went to the man selling-tickets, and told him that they had been bothered while in the theater. About this time appellant came out of the show, and, according to the state’s theory, they identified appellant as the man who had bothered them. The young women testified that they took their seats in the darkened theater, and that presently a man’s hand came from under a seat in front of them, and felt of the leg of the prosecutrix in the instant ease. She testified that just in front of her appellant was sitting, and that the seat to his right was vacant, and that she had her legs crossed and extended toward the vacant seat, and that her companion, sitting on her right also had her legs crossed and extended toward said vacant seat. The companion of the prosecuting witness testified for the state that when they went into the theater build-, ing they took their seats near the middle of the building (evidently referring to the middle of the building viewed from its length), and that Fern Gibson, prosecuting, witness herein, was sitting in the seat next to the right-hand aisle, and that witness took the seat next to and on the right of Miss Gibson, facing the entrance of the building. She said that, while they were sitting there, she saw a man’s hand come up from the bottom of the vacant seat in front of witness, which hand was placed on her leg below the knee; that she kicked the hand and tried to mash it. That Miss Gibson said some one had touched her on the leg. They got up and moved to the next seat, which placed Miss Gibson immediately behind the vacant seat in question. That it was the defendant who was sitting in the seat in front of Miss Gibson and next to the vacant seat in question. Both young women testified that they got up and went to the office and complained to a Mr. Garland o,f the fact that some one was bothering them. Mr. Garland, testifying for the state, said that the young ladies came and made complaint to him, and that both of them were laughing and smiling when they detailed to him what they claimed had happened. He also said that after telling him about this they went on back into the show, and later, as they came out, he asked them if anyone had bothered them again, and that they were in a good humor, and punched each other and were giggling as they replied that no one had bothered them. The ground of aggravation laid in the complaint was that the appellant was an adult male person and the prosecutrix, a female.

Under the facts above set forth appellant presented a special charge, which is as follows:

“You are instructed that, although you may believe beyond a reasonable doubt that defendant did make an unlawful assault upon the person of Fern Gibson without her consent and against her will by placing his hand on her legs, * * * and that he was an adult male and she was a female, yet if you believe from the evidence that said assault did not cause her any constraint or sense of shame or other disagree-able emotions of the mind, you will acquit the defendant.”

In our opinion this special charge, or the substance thereof, should have been given to the jury. The only fact basis for the prosecution rested upon the proposition that appellant placed his hand upon the leg of the prosecuting witness. Unless this, action produced in her mind some sense of shame or restraint or disagreeable emotion, there would appear to be no legal injury. Stermer v. State, 46 Tex. Cr. R. 183, 78 S. W. 1072; Koen v. State, 50 Tex. Cr. R. 145, 95 S. W. 114.

Complaint is made of the admission of the testimony of the sheriff- as to experiments made by him with certain chairs in the theater building in question. It is made to appear as a result of such experiment the sheriff found that the hand of a person sitting in a seat could be thrust under the seat beside him, under certain conditions, in such manner as to be able to reach and touch the leg of a person sitting to the rear. The general rule in regard to testimony of experiments is that same must be made under conditions similar, or approximately similar, to those which surrounded the original transaction, and, when there is objection made, proof must appear of substantial similarity. We find nothing in the record which shows that all the seats in the theater in question were similarly constructed, and the proof as to the fact that the chairs examined by the sheriff were similar to those occupied by appellant and the young women in question seems to fail. It was a material question as to whether a hand could be reached under the seat and placed upon the leg of the prosecuting witness between her ankle and her knee. The testimony as to the experiment, if of a similar situation, was material. In the absence of a showing of substantial similarity the evidence of the experiment should not have been received.

In the argument of the ease the county attorney, closing for the state, made the following statement to the jury:

"I want to tell you that when this assault was committed, the good citizenship of the town of Terrell was so outraged and believed in the guilt of the defendant that the officers had to take the defendant away from that town.”

It would be difficult to imagine a more prejudical statement. The county attorney, a loved and honored officer of the law, by this statement placed before the jury the belief of the citizens of the town in which the alleged assault was committed of the fact that appellant was guilty, and that they so strongly wished to see him punished that the officers were compelled to take him áway from the town to prevent summary punishment. We do not think the oral instruction of the county judge to the jury that they should disregard such' argument could remove its effect. Similar arguments have often been held reversible error.

For the errors above indicated, the judgment will be reversed, and the cause remanded. 
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