
    ROBEY v. STATE.
    (Court of Criminal Appeals of Texas.
    April 30, 1913.
    On Motion for Rehearing, Feb. 4, 1914.)
    1. Criminal Law (§ 824) — Misdemeanor Trials — Instructions.
    In misdemeanor cases, the defendant must ask correct charges applicable to the facts, otherwise the court is under no obligation to give them or any other charge on the subject.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1996-2004; Dec. Dig. § 824.]
    2. Assault and Battery (§ 96) — Instruction— Intent to Injure.
    In trial for aggravated assault, a charge that the use of any unlawful violence upon the person of another “with intent to injure him” is an assault and battery, and, if causing serious bodily injury, is an aggravated assault, that, if defendant committed an aggravated assault and battery by striking and wounding complaining witness, thereby inflicting serious bodily injury, he would be guilty of aggravated assault, was Hot objectionable as failing to require a finding that defendant intended to injure complaining witness.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.)
    3. Assault and Battery (§ 91) — Aggravated Assault — Elements op Oppense — Intent to Injure.
    Pen. Code 1911, art. 1008, provides that the use of any unlawful violence upon the person of another with intent to injure him, whatever the means or degree of violence, is an assault and battery, and article 1009 declares that, when an injury is caused by violence, the intent to injure is presumed. Defendant, who was postmaster, and whose feelings toward complaining witness were unkind, claiming that resignation had been accepted, and that he had no right to-be in the post office, ordered him out, and, upon his starting to go out the door at which he usually went out, intercepted him, and forcibly attempted to put him out of another door, complaining witness making no assault, but resisting, so that defendant called another employs, and together threw witness down, forced him against the door, dislocating his shoulder, and finally put him out. Meld, that the circumstances showed defendant’s intent to injure, and that his acts injured the assaulted complaining witness.
    [Ed. Note. — For other cases, see Assault and Battery, Gent. Dig. § 136; Dec. Dig. § 91.
    
    For other definitions, see Words and Phrases, vol. 1, pp. 539, 540; vol. 8, p. 7582.]
    4. Assault and Battery (§ 54) — Aggravated Assault — Serious Injury.
    Under the assault and battery statute, requiring the injury to be a serious one to constitute aggravated assault, a dislocation of complaining witness’ shoulder inflicted by defendant while forcibly putting him out of a door in the post office, which hurt a great deal, required a sling for several weeks, and continued to hurt at trial six months later, which had been put in place while complainant was under anesthetics, and which, while not necessarily permanent, would- expose the joint to greater chance of a subsequent dislocation, was a serious injury.
    [Ed. Note. — For other cases, see Assault and Battery, Gent. Dig. §§ 75-78; Dec. Dig. § 54.]
    5. Assault and Battery (§ 84) — Triai>-Ev-idence.
    Upon defendant’s trial for aggravated assault, where he was permitted to testify that he had no intent to injure complaining witness, there was no error in refusing to permit the other party engaged in the assault to testify that he did not intend to injure.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. § 132; Dec. Dig. § 84.]
    6. Criminal Law (§ 398) — Documentary Evidence-Admission oe Copy.
    In prosecution for aggravated assault, where the fact of complaining witness’ resignation from a post office position was in issue, and he himself testified, without objection, that he had sent his resignation to Washington at a certain date, a carbon copy of such resignation was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-886; Dec. Dig. § 398.]
    On Motion for Rehearing.
    7. Assault and Battery (§ 96) — Aggravated Assault — Instructions — Defendant’s Theory of ti-ie Case.
    In a prosecution for aggravated assault, where defendant claimed that complaining witness had resigned as a post office employs, and had no right to enter or be in that part of the post office from which the public was excluded, and that he had employed another in his stead, the defendant’s theory that, if witness did not have the right to be in the private part of the post office without his consent, he could use sufficient force to prevent him, and if, acting in a bona fide attempt to prevent him from going through the post office, he committed an assault and battery without more force than was necessary, he should be acquitted, should have been submitted.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.]
    8. Assault and Battery (§ 64) — Aggravated Assault — Justification.
    Where defendant, a postmaster, with another employé, used more force than was necessary to prevent complaining witness from entering or being in the private part of the post office, using his presence as an excuse or pretext for committing an assault, such assault was unjustifiable.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 90-92; Dec. Dig. § 64.]
    9.Criminal Law (§ 400) — Best and Secondary Evidence — Production of Telegram.
    In a prosecution for assault, where defendant, a postmaster, claimed to have had a telegram from the Postmaster General to relieve the complaining witness, the court, if defendant had such telegram, should have required its production and introduction in evidence, instead of admitting defendant’s oral testimony to the fact and as to its contents.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-SS6, 1208-1210; Dec. Dig. § 400.]
    Appeal from Coleman County Court; T. J. White, Judge.
    B. F. Robey was convicted of aggravated assault, and he appeals.
    Reversed and remanded for a new trial.
    Snodgrass & Dibrell, of Coleman, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

By proper complaint and information appellant was charged with an aggravated assault upon Tilden Brown, thereby inflicting serious bodily injury upon him. He was found guilty, and his penalty fixed at a fine of $25 — the lowest prescribed for that offense.

The evidence, shows that for about four years continuously before March 2, 1912, the date on which the offense is charged, said Brown had been the mailing and distributing clerk in the post office at Coleman, and had a key to the post office, and access thereto at any and all times; that appellant was the postmaster. According to appellant’s own testimony, his feelings toward Brown at that time were unkind. .It seems that, because of this, Brown wrote to the proper post office authorities at Washington, D. C., on February 27, 1912, tendering his resignation to take effect on April 1st following. On February 29, 1912, Brown was sick, and could not and did not work that day nor the next. Brown recovered sufficiently to return to his work, which he did on the evening of March 2d. As such employé at the time, Brown had the key to the post office, and access thereto. Appellant was not in the office when Brown 'returned to work on the evening of March 2d, but came in the office while Brown was at work. Brown told him that he did not understand his message of February 29th to the effect that his resignation had been accepted, stating that his resignation had been tendered to take effect on April 1st. Appellant invited him into his office in the post office, where they proceeded to talk the matter over. Appellant claimed that he had wired the department at Washington, and that the department had answered by wiring that Brown’s resignation had been accepted. Brown asked him to show him the telegram. Appellant refused. Appellant tendered Brown a warrant for his pay for the month of February, stating in the face of it that it was in full for his services, and that he had resigned. Brown refused to accept it, and, it seems, then indicated he would then quit if appellant would pay him for the two extra days. Appellant refused to do this as postmaster, but offered to do it out of his own pocket. Brown declined to accept it and accept the said warrant because it stated that he had resigned on Feb. 29, 1912. In effect appellant then ordered Brown out of the post office, and ordered him out a certain door. Brown declined to go out at that door, but offered and started to go out at the door that he usually came in and out. After getting several steps in that direction, appellant intercepted him,, caught hold of him, and by force attempted to force him out of the door that he (appellant) demanded he should go out. Brown resisted this, still offering and claiming the privilege of going out the door he ordinarily •came in and went out. Brown did not assault appellant in any way — simply resisted appellant’s attempt to force him out the door that appellant demanded he should go out. Appellant was a large man. Seeing, however, that he could not succeed in forcibly putting Brown out the door that he (appellant) wanted to force him out, he called upon the other employé in the post office at the time to come to his assistance and handle him roughly. The other employé then proceeded, under appellant’s directions, to force Brown, and they both attempted to put him out the door they wanted him to go out. In the attempt by appellant to forcibly put him out, he threw Brown against the side of the door, and dislocated Brown’s shoulder. The struggle continued. The other employé was a much larger, -taller, and heavier man, also, than Brown. They finally, after assaulting him, and committing batteries upon him, as stated, succeeded in throwing him down, the said large employé, weighing nearly 200 pounds, on top of him, and forcing him out of the door they wanted him to go out; Brown all the time claiming, and we think the evidence sufficiently shows that he claimed, to be still an employé in the department, with a right to go in and out of the office as he had been in the habit of doing. Brown testified pointedly that, in appellant’s attempt to force him out, and throwing' him against the door facing, he dislocated his shoulder. That the shoulder was dislocated was proven without question, and without doubt. The testimony authorized the jury to believe and find, as they 'did, that the injury to Brown was a serious one in contemplation of our assault and battery statute. We think the evidence is amply sufficient to show, and authorized the jury to find, that Brown was not a trespasser in attempting to go through the post office and out of it where he had been in the custom of going in and out. The proof further showed that, in order to put Brown’s shoulder, joint in place, he had to be put under an anaesthetic, and it took two physicians to replace his shoulder. He suffered therefrom considerably and for some length of time.

The court by his charge required the jury to believe that the assault and battery inflicted was a serious bodily injury before they could convict appellant of an aggravated assault. Appellant requested several special charges to the effect that, if the Postmaster General had relieved Brown from service as an employé, and appellant had employed a substitute in his place, Brown no longer had a right to go through or into the post office without appellant’s consent, and appellant had the right to prevent him from doing so, and to use sufficient force for that purpose, and by force to put him out of the post office, and if they so believed to acquit appellant. The court correctly refused these charges. They each and all ignored the fact that Brown was an employé therein, or had been, and still claimed that he was such em-ployé, and that he claimed the right to go in and out of the post office as he had usually done.

The law in misdemeanor cases is that, when appellant requests special charges which are not the law of the case, the court is not required to give them, nor is he under any obligations to give any other charge on the subject. In other words, that appellant must ask a correct charge applicable to the facts; otherwise the court is under no obligations to give it, nor to give any charge on the subject in a misdemeanor case. See Perkins v. State, 144 S. W. 245; Mealer v. State, 145 S. W. 354; and the authorities cited in said cases. This court has many times recently so held in numerous cases, as well as in many of the older decisions. It is unnecessary to collate the authorities.

Again, appellant complains that the court erred in refusing to give his charge, and complaining of the court’s charge, because the court did not charge that thé jury must believe beyond a reasonable doubt that the appellant intended to injure Brown, and, if they did not so find, to acquit appellant. The court in his charge told the jury that the use of any unlawful violence upon the person of another with the intent to injure him, whatever be the means or degree of violence used, is an assault and battery, and that an assault and battery becomes aggravated when a serious bodily injury is inflicted. Then told the jury that, if they believed from the evidence beyond a reasonable doubt that appellant, either acting alone or together with Center, said other employé, made and committed an aggravated assault and battery upon Brown by striking, wounding, etc., him, as alleged in the complaint, and thereby inflicted serious bodily injury upon him, that he would be guilty of an aggravated assault. We think this could not otherwise have been understood by the jury than that they must believe that appellant intended to injure him by committing the assaplt and battery upon him, even if that was necessary.

The law on this subject is as stated by this court in Ward v. State, 151 S. W. 1075: “Our statute (P. O. 1911, art. 1008) expressly enacts that ‘the use of any unlawful violence upon the person of another with intent to injure him, whatever be the means or degree of the violence used, is an assault and battery.’ The next article (1009) is: ‘When an injury is caused by violence to the person, the intent to injure is presumed. ⅜ * * ’ Judge White, in his note' (section 969, P. C.), says: ‘In assault and battery, the necessary act, viz., the “use of violence upon the person of another,” is easily understood. But the necessary “intent to injure him” is not so easily explained by an affirmative description. Still, the necessary act being proved, the necessary intent to injure is known to exist as a legal necessity, whether we can discover, understand, or explain it or not, so that the two concurring will constitute the legal injury of assault and battery, unless it be shown that the act was accidental, or the intention was innocent. It may therefore be said that practically, in legal contemplation, the proof of the necessary act either is or carries with it the proof of the necessary intention to injure, so as to constitute the legal injury, unless it is rebutted by evidence showing that the legal presumption should not be indulged, which may not be by showing an absence of intention to injure, but by showing that the intention was innocent with which the act was done. McKay v. State, 44 Tex. 43.’ The least touching of another’s person wilfully is a battery. Norton v. State, 14 Tex. 387; Johnson v. State, 17 Tex. 515.”

The acts of the appellant in this case, without doubt and without question, not only show that appellant did actually commit an assault and battery upon Brown, but the circumstances show that his intent was to injure and his acts did injure the assaulted party. There are cases which raise the question of an intent to injure, and in such cases it might be the duty of the court to so specifically require the jury to believe; but this case does not raise such question. The evidence in no way indicates that appellant’s assault and battery was by accident, or innocent intent, or anything of the kind.

Appellant also contends and cites authority to indicate that by the assault and battery in this case no serious injury was inflicted upon Brown. On this subject the court charged the jury that by serious bodily injury is meant such an injury as gives rise to apprehension; an injury which is attended with danger. “You are therefore instructed, if you have a reasonable doubt as to whether the injury, if any, was a serious bodily injury, you will acquit the defendant of aggravated assault and battery.” Brown testified: That from the said injury inflicted upon him his shoulder hurt him a great deal, and pained him, and he carried it in a sling for several weeks, and it had continued to hurt him ever since. (The injury was inflicted March 2, 1912, and the case was tried and Brown- testified about September 2, 1912.) That at the time he had two doctors to see him. That they had to put him under the influence of opiates in order to pull his shoulder back in place, and they did so. One of the doctors testified: That when he examined Brown on the evening of March 2, 1912, he found his shoulder was dislocated. That he had another doctor to assist him in putting Brown’s shoulder back in place, and that they gave him an anaesthetic to do so. That there was no fracture of the bone; it was just a dislocation of the joint, the end of the bone having been thrown out of the socket. That in his opinion the injury might be considered serious in the sense that it would render it more likely to occur again. That it put the joint in a condition that it would be more easily dislocated again, and that another dislocation could be brought about without much force. That, if the arm was thrown upward or extended, it would be easy by a sudden wrench to be thrown out of socket. In our opinion the injury, under the circumstances and charge of the court, should be considered a serious one in contemplation of our statute.

The court did not err in refusing to permit the witness Center, who was the other party who committed an assault and battery upon Brown, in connection with appellant, to testify that he did not intend to injure Brown. The assault and battery is charged to have been committed by appellant, and by the charge of the court he restricted the jury to the consideration of the injury by appellant himself. The court had permitted appellant to testify that he had no intent to injure Brown.

Neither did the court commit reversible error in permitting the state to introduce a carbon copy of the resignation of Brown, sent by him to the Postmaster General on February 27, 1912. Brown himself had testified, without objection, that he had so sent his resignation to the Postmaster General on that date, resigning to take effect on April 1, 1912. The co.urt, in qualifying appellant’s bill on that subject, did so by stating that the original letter was sent to Washington, D. C., which .was beyond the jurisdiction of the court.

We have not thought it necessary to take up and discuss separately each of appellant’s claimed errors. What we have said above, we think, covers, in substance and in effect, the whole of them. We have considered them all. It is our opinion no reversible error is shown.

The judgment will therefore-be affirmed.

On Motion for Rehearing.

Appellant has filed a lengthy motion for rehearing, and brief and argument thereon. He urges that the court is in error in the opinion herein in many particulars. No other point is urged for rehearing, except one, in which there is any merit.

Upon a re-examination of the case, we have concluded that the special charges refused in this case present one question which was not presented by the court’s charge, but which should have been presented, and results in a reversal of this case. The evidence develops that appellant claimed that he had wired to the Postmaster General the fact of Tilden Brown’s resignation as an employé in the post office, and that he was so rushed with business at the post office it was necessary to have another in his stead, and that under the circumstances the Postmaster General had wired him the authority to relieve said Brown from said service as an employs, and that he had done so, and employed another in his place, and at the time of the alleged assault in this case said Brown was not an employs in said post office, and had no authority or right to go into or through the same. Of course that part of the post office building from which the public is excluded is what is meant. The trial court should therefore have submitted to the jury the appellant’s theory to the effect that, if they believed from the evidence that appellant, under the authority of the Postmaster General, had in fact relieved said Brown from the government service as an employs, and in his stead he had employed another, then said Brown no longer had the right to go into or through the private part of said post office without the consent of appellant, and, if he attempted to do so, appellant had the right to prevent him, and to use sufficient force for that purpose. And if so acting himself, or his other employs acting with him, in a bona fide effort to prevent said Brown from going into, or through said post office, committed an assault and battery upon him, and in so doing used no more force than was necessary to prevent said Brown from going into or through said post office, then to acquit him.

The substantial reverse of the proposition should also be given; that is, if appellant and his other employs used more force than was necessary, or his purpose and intention was not to prevent said Brown from going into or through said post office, but using that as an excuse or pretext for committing an assault and battery upon Brown, then his assault and battery upon Brown would have been unjustifiable. We think the evidence justifies a charge on this feature of the case.

It is to be noted that in the interview between appellant and Brown just before the assault appellant claimed to have had a telegram from the Postmaster General to do what he had done in relieving Brown and employing another. Brown called for this telegram at the time. Appellant did not produce it. On the trial appellant testified that he had such telegram, but did not produce it. If he had such a telegram, the court should have required its production and introduction in evidence, instead of appellant’s oral testimony to the fact and its contents.

For the error above pointed out, the rehearing is granted, the former judgment of affirmance herein is set aside, and this cause is now reversed and remanded for a new trial.  