
    BREEDING v. STATE.
    No. 22617.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1943.
    H. R. Bishop, of Fort Worth, for appellant.
    Spurgeon E. Bell, State’s Atty., of Austin, for the State.
   DAVIDSON, Judge.

The count in the information upon which this conviction was predicated charged that appellant, an adult male person, did commit an assault upon a female. The crime so charged was that of aggravated assault under Sec. 6 of Art. 1147, P.C. The punishment assessed was a fine of $1,000 and two years’ confinement in jail — the maximum penalty authorized to be inflicted for that offense. Art. 1148, P.C.

The case was submitted to the jury under the rule of law that the indecent familiarity of the person of a female, by an adult male, is an assault. Gill v. State, 48 Tex.Cr.R. 39, 85 S.W. 1062; Miller v. State, 67 Tex.Cr.R. 654, 150 S.W. 635.

According to the testimony of the prosecutrix, no indecent familiarity of her person was committed by appellant. She was very emphatic that appellant did not put his hands on her, or touch her, at the time and on the occasion the assault is alleged to have been committed. In the light of this testimony, and the facts as a whole, we are unable to conclude that the evidence is sufficient to support this conviction. The prosecutrix was the alleged injured party. She was in a better position than anyone else to know whether or not appellant committed the assault upon her as charged. She exonerated him.

If it be insisted that other testimony in the case is sufficient, at least circumstantially, to show the appellant guilty, there is an entire absence of any testimony that whatever was done by the appellant caused prosecutrix any constraint or sense of shame or other disagreeable emotions of the mind. Clancy v. State, 93 Tex.Cr.R. 380, 247 S.W. 865, 27 A.L.R. 857.

The judgment is reversed and the cause is remanded.

PER CURIAM.

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.  