
    CRISPI v. STATE.
    (No. 6450.)
    (Court of Criminal Appeals of Texas.
    Jan. 25, 1922.)
    1. Criminal law @=>603(11) — Application for continuance' held not to show diligence in locating witness.
    In a prosecution for assault, where continuance was applied for because of an absent witness, where subpoena issued and was returned without service, and only at time of trial defendant learned that witness lived at an unknown address on a certain street held, that the application did not show sufficient diligence.
    2. Criminal law @=5917(2)— Overruling motion for new trial on account of denial of continuance held not error.
    Where, on motion for new trial on account of refusal to continue for absent witnesses, the court heard evidence that officers had been unable to find witness and ascertained she was out of the city, no affidavit of witness was attached to application, and the testimony of an absent witness would have been material only as contradictory of testimony of a state witness, but the state witness testified in substance to the same matters attributed to the absent witness, held, there was no error in refusing new trial.
    3. Criminal law @=3 1091 (4) — Bill of exceptions held to present no error in admission' of evidence.
    A bill of exceptions complaining of evidence of- a conversation between the prosecutrix in an assault case and another witness held to present no error; it not being shown that defendant was not present at the time of the conversation.
    4. Criminal law @=3419, 420(10), 1169(1)— Evidence of prjsecutrix’s statements as to not going into the matter for money held hearsay and its admission harmful.
    In a prosecution for assault, where defendant’s theory was that his conviction was sought as a predicate for a proposed damage suit against him, evidence of what prosecutrix said, out of the hearing of accused, that she “did not go into this thing for money,” was hearsay and harmful, there being nothing in the record that such witness, when calling on prose-cutrix, was instructed by accused as to what to do or say.
    5. Criminal law @=3415(1) — Statements of prosecutrix made after assault inadmissible unless res gestee.
    In a prosecution for aggravated assault, it was not competent as original evidence, unless res gestee, to prove on behalf of the state that at various times after the alleged assault prosecutrix warned her friends against defendant, and told them that he had hugged and kissed her.
    6. Assault and battery @=383 — Evidence reflecting complaint of prosecutrix and feeling of witness inadmissible.
    In a prosecution for assault, evidence by witness that he went with prosecutrix shortly after the assault to accused’s place of business “to give him a beating” was inadmissible, as reflecting the complaint of prosecutrix and the feeling of such witness.
    7. Assault and battery @=>96(5) — In indecent assaults on female, not error to charge on presumption of intent to injure ded'ueible from injury.
    In assaults of an indecent character by an adult male person on a female, it is not error to give in the charge the presumption of intent to injure deducible from injury set out in Yer-non’s Ann. Pen. Code 1916, art. 1009.
    8. Criminal law @=>814(6) — No charge on theory of innocent intent where unsupported by evidence.
    In a prosecution for assault, where there was nothing in prosecutrix’s testimony showing that defendant kissed her with her consent, it was not error to refuse a request which’ sought to. have the jury told that, if accused kissed prosecutrix with no intent to injure her feelings, and believing same would not be objectionable to her, they should acquit.
    9. Criminal law @=3772(6) — Where theory of defendant is supported by evidence, court’s duty to present affirmatively.
    Where defendant’s theory of defense is supported by any evidence, it is the court’s duty to present it affirmatively.
    10. Criminal law @=>1056(1) — Failure to instruct not ground for reversal where exception was not taken.
    Where defendant asked a special charge, but took no exception to the failure of the court to present his defensive theory in a misdemean- or case, the failure to charge will not be held reversible error.
    Appeal from Bexar County Court; Nelson Lytle, Judge.
    D. A. Crispi was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    Joe H. H. Graham and Mauermann & Hair, all of San Antonio, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the county court of Bexar county for criminal cases of the offense of aggravated assault, and Ids punishment fixed at a fine of $25 and 30 days in the county jail.

Appellant was the manager and proprietor of a candy making establishment in the city of San Antonio, and was charged with making an aggravated assault on Miss Gravel!, the state contending that on the occasion in question he caught and kissed Miss Graven without her consent and against her will. The theory of the defense was that on the occasion in question appellant did not kiss or attempt to kiss Miss Gravell or use any indecent familiarity toward her, but that he did put his hand upon her shoulder and push her slightly to one side so that he could pass by where she was standing in a narrow passageway. The complaint was filed in February, 1921, and a mistrial had during March of said year. When this cause was called for trial upon a resetting in April, appellant asked for a continuance because of the absence of Gertrude Allen and Howard Williams. It is stated in the application for continuance that appellant had recently learned of the facts stated to be those expected from Miss Allen, and that a subpoena issued for her and placed in the hands of the sheriff had been returned without service, and that only about the time of this trial appellant learned of the fact that she was living on a certain street in San Antonio, the exact address not being known to him. We do not think the application showed sufficient diligence as to witness Allen.

On, the presentation of the motion for new trial the court heard evidence which in substance showed that the officers had gone to the parties named to them by appellant and his attorney as being able to locate said witness, and that they had been unable to find her, and ascertained that she was out of the city. The motion for new trial was heard by the court more than two weeks after the date of trial, and no affidavit of said witness was attached to said motion. The testimony of the absent witness Williams is not shown by the application to have been material. It would only have become material as contradictory of the testimony of Mrs. Ruth Martin, a state witness, but an examination of the evidence given by Mrs. Martin discloses that she testified in substance to' the same matters attributed to the witness Williams. We are of opinion no error is shown in the overruling of said application.

By his bill of exceptions No. 13 appellant complains of evidence of a conversation between Ruth Martin and prosecutrix. We will not discuss said bill at length, but are of opinion that same is not so drawn as to present error, it not being shown that appellant was not present at the time of said conversation.

The appellant’s theory of the case was that the complaint was filed against him by prosecutrix, and his conviction sought as a predicate for a proposed damage suit against him by her. Ruth Martin testified for the state, and said that she went out to see pros-ecutrix shortly after the occurrence, on behalf of appellant. She was asked by state’s counsel to tell what she said to prosecutrix on the occasion of her visit to the latter and her reply, said statements being set out in bill of exceptions No. 14 as follows:

“A. That he was going to sue her for blackmailing. She said, ‘Let him sue, for we don’t care; we didn’t go into this thing for money,’ and she was going to carry it through to the very last.” -

This was objected to for that it was not res gestas, not in the presence and hearing of the accused, and could have served no other purpose than to prejudice the case. Substantially the same matter and the same objection are presented in bill of exceptions No. 10, wherein the same facts were stated by prosecutrix when on the witness stand. Nothing in the record makes this hearsay statement and conversation admissible. Manifestly.Ruth Martin went to see prosecu-trix purposing to aid appellant, and- the record is susceptible of the construction that he wanted her to go, or that he sent her, but we find nowhere any instruction from him as to what she should do or say. The statement of the prosecutrix just quoted was a direct denial by her, at a time when no such charge had been made, of the motive assigned by the defense as the moving cause of the prosecution, and was a strong refutation, if true and admissible, of appellant’s theory. We cannot, therefore, hold that such hearsay statement was not hurtful. Appellant’s objection should have been sustained to the conversation in each instance.

The matter objected to and set forth in bills of exception Nos. 3 and 4 would also be inadmissible if transpiring out of the presence and hearing of the accused. Said bills are approved without explanation or qualification by the trial court. Bill of exceptions No. 3 sets out objections to a conversation had between prosecutrix and two of her female companions about a half hour after the time of the occurrence charged. Bill of exceptions No. 4 relates, to statements made by prosecutrix several hours after said alleged occurrence. Manifestly it would not be competent as a matter of original evidence, unless res gestse, to prove on behalf of the state that at various times after the alleged assault prosecutrix warned her friends against appellant, and told them that he had hugged and kissed her.

After the alleged assault prosecutrix returned to appellant’s place of business accompanied by one Whitman, who was introduced on the trial as a witness for the state, In his direct examination Mr. Whitman was asked by the state what his purpose was in going to said place of business, to which he answered, “To give Mr. Crispí a beating. Appellant’s objection to this should have been sustained. The purpose of said witness in such visit shed no light on any issue herein, and only reflected the complaint of prose-cutrix, and the feeling aroused in the breast of Whitman thereby. The testimony should not have been allowed.

In cases of aggravated assault, based on assaults of indecent character by an adult male person on.a female, it is not erroneous, to give in charge to the jury the presumption of intent to injure deducible from injury, set out in article 1009, Vernon’s P. O., the substance of which was presented in a charge given at the instance of the state. Tubbs v. State, 50 Tex. Cr. R. 143, 95 S. W. 112.

Appellant positively denied kissing prosecutrix as claimed by her. There is nothing in her testimony remotely suggesting that the kiss was with her consent, or that it was not without such consent, in which condition of the record it was not erroneous for the court to refuse appellant’s special charges Nos. 2, 3, and 5, which soiight to have the jury told that, if appellant kissed prosecutrix with no intent to injure-her feelings, and believing same would not be objectionable to her, they should acquit. No need existed to charge upon a theory unsupported by the evidence.

Appellant asked special charge No. 1, to the effect that, if the jury believed that appellant only placed his hands on the shoulder of prosecutrix for the purpose of getting by her, or moving her from his way so he could get by, and did nothing else to her, and that in what he so did there was no intent to injure, he should be acquitted. We find upon examination that no exception was taken to the charge of the court as given for failure to incorporate therein such defensive theory, which exception should have been taken *as a predicate for the requested charge in a misdemeanor case. The court nowhere presented affirmatively the theory of the accused as made by his' testimony and as presented by said special charge. Had proper exception been taken, this would have been reversible error, as the duty of the court is to present affirmatively the theory of the appellant if supported by any evidence. Menach v. State, 97 S. W. 503; Porterfield v. State, 64 Tex. Cr. R. 179, 141 S. W. 968.

For the errors mentioned, the judgment of the trial court will be reversed, and the cause remanded. 
      <g=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     