
    PERKINS v. STATE.
    (Court of Criminal Appeals of Texas.
    May 31, 1911.)
    1. Assault ' and Battery (§ 82) — Prosecution — Evidence—Presumptions.
    The presumption that injury was intended arises from violence, but that presumption may be rebutted.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. § 127; Dee. Dig. § 82.]
    2. Assault and Battery (§ 96) — Prosecution — Instructions.
    Where there was evidence tending to show that one prosecuted for an aggravated assault in driving over a young girl was intoxicated and that he was either racing with another.'or his horse was running away when the alleged assault took place, an instruction that if the defendant was not actuated by a criminal intent, he is not guilty, should have been given, the question of intent being presented by the evidence.
    [Ed. Note. — For other cases, see Assault and • Battery, Dee. Dig. § 96.]
    3. Criminal Law (§ 814) — Instructions.
    Instructions in a criminal case must be applicable to the pleadings and evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1979; Dec. Dig. § 814.]
    Appeal from Mills County Court; S. H. Allen, Judge.
    Andrew Perkins was convicted of an aggravated assault and battery, and he appeals.
    Reversed and remanded.
    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
    
   DAYIDSON, P. J.-

By complaint and information appellant was charged with committing an aggravated assault and battery upon Mabel Venable, and that he did then and there wound and bruise Mabel Venable by running against the said Mabel Venable with his buggy and horse, and did then and there, thereby and therewith, inflict serious bodily injury upon the said Mabel Venable.

The evidence discloses that on the evening of the alleged assault appellant “got upon an uproarious and saturated drunk,” and that he and others were traveling the road between the little village of Star and Center City; that they were either racing or appellant’s horse had become uncontrollable and ran away with him; that during this wild performance Mabel Venable was run over, knocked down, ana injured; that at a short distance, after this occurrence, his horse ran the buggy against a post and there was a consequent wreck and appellant was thrown from the buggy. John Whidden testified that he went in appellant’s buggy to Long branch on the Star road; that appellant’s horse tried to run while appellant held the lines, and he, witness, reached for- the lines, and reined the horse into a post, and stopped him; that he thinks appellant was drunk; that if he had not been drunk he would have stopped his horse; that they took a drink of whisky; that he rode in another buggy the rest of the way to Star; that he quit riding in appellant’s buggy because he was afraid he would get hurt, as appellant could not manage his horse. This witness went to the appellant’s horse and buggy by the post where the wreck occurred, and hitched the horse back to the buggy; that a line was. broken, the bits out of the horse’s mouth and the cross bar that the single tree was on was broken. Appellant himself testified that he got some whisky or alcohol at Center City; that there were four quarts of alcohol, drank some of it, but did not remember of taking but two drinks; that he did not remember anything after leaving Center City, did not remember about running over any children; that the first time he found out about the children being run over was after he had been arrested; that Langford and Preston told him about the children getting hurt; ’ that he had no ill will or feeling against the children, never saw or heard of them before the accident; did not know their parents; that he. never saw them when^he ran over them, if he did run over them. It was admitted that Dr. Brooking, if present, would testify that appellant either was brought or came to his house immediately after the accident very drunk, about as drunk as a man could possibly be; so drunk that he did not have any sense and could not talk, and did not seem to understand anything. It was also shown by the facts that he had been acquitted of the charge of racing, but plead guilty to a charge of disturbing the peace and drunkenness in the town of Star, being the same drunk testified to by the witnesses in this transaction. It is unnecessary to go into a detail of all the matters connected with the trip from the place where he bought whisky and got drunk to the place of running over the children and the wrecking of his buggy against the post.

The court charged the jury the terms of the statute in regard to assault, coupled with the ability to commit a battery, and included in his charge all of that statute which includes: (1) That the person making the assault must be in such, position that, if not prevented, he may inflict a battery upon the person assailed. (2) ále must be within such distance of the party so assailed as to make it within his power to commit the battery by the use of the means with which he attempts it. Again, that it would follow that one who is at the time of making an attempt to commit a battery, under such restraint as to deprive him of the power to act, or who is at so great a distance from the person assailed as that he cannot reach his person by the use of the means with which he makes the attempt, is not guilty of an assault. But the use of any dangerous weapon, or the semblance thereof, in an angry or threatening manner, with intent to alarm another, and under circumstances calculated to effect that object, comes within the meaning of an assault. Then after giving the punishment for simple assault, and assault and battery, the charge gives definitions of aggravated assault, and informs the jury that such assault, becomes aggravated when committed upon an officer in the discharge of his duties of his office, if it was known or declared to the offender that such person was an officer discharging an official duty. Again, he charges that it is aggravated assault when committed in a court of justice, or in a place of religious worship, or in any place where persons are assembled for the purpose of innocent amusement. And again he charged the jury when a person committing an offense goes into the house of a private family, and is there guilty of an assault and battery; again, when committed upon one who is aged; and again when committed by an adult male upon the person of a female, or child, or by an adult female upon the person of a child. Again, when the instrument or means used is such as inflicts disgrace upon the person assaulted, as an assault or battery with a whip or cowhide; or when a serious bodily injury is inflicted upon the person assaulted; or when committed with deadly weapons under circumstances not amounting to an intent to murder or maim; or when committed with premeditated design, and by the use of means calculated to inflict great bodily injury; and when committed by any person or persons in disguise. He then informs the jury that violence does not amount to an assault or battery in the following eases: Under the exercise of moderate restraint or correction given by law to the parent of the child, the guardian over the ward, the master over his apprentice, and the teacher over the scholar ; for the preservation of order in a meeting for religious, political, or other lawful purposes ; for the preservation of the peace, or to prevent the commission of offenses; or in preventing or interrupting an intrusion upon the lawful possession of property; or in making a lawful arrest and detaining the party arrested, in obedience to the lawful order of a magistrate, or court, and in overcoming resistance to such lawful order; or in self-defense, or in defense of another against an unlawful attack offered his person or property. He then instructs the jury that if appellant on or about the time charged in the information did commit an assault and battery upon Mabel V.enable, as charged, they would find him guilty. He then instructs the jury that intoxication, or temporary insanity of mind produced by the voluntary recent use of intoxicants, is not an excuse for the commission of crime; that they consider intoxication or temporary insanity produced by intoxication in mitigation of the penalty only. He also instructs the jury further that if the defendant was traveling in a reckless manner without due regard for others at the time Ma'bel Venable was injured, and that her injury was the result of such reckless traveling, even though he were in a drunken condition, he would be guilty. He further charged the jury that when an injury is caused by violence to the person, the intent to injure is presumed and it rests with the accused to show the accident or innocent intention. He further instructed the jury that the intended injury may be bodily pain, constraint, sense of shame, or other disagreeable emotion of the mind, and that he might be guilty, even though the person actually injured was not intended to be injured. All these charges were then followed by a charge on circumstantial evidence.

A special charge was requested to the effect that, although the defendant did drive his horse and buggy against the alleged injured party and thereby inflict the wounds and bruises as charged, still, if the jury should find that at the time defendant was not actuated by a criminal intent to commit said alleged aggravated assault they should acquit. This special charge was refused. We are of opinion that the evidence discloses that appellant was entirely drunk and that he was either racing with another, or that his horse became unmanageable by reason of the breaking of the lines and the bit coming out of his mouth, and ran away, and while so running ran over Mabel Yen-able and injured her, and in a few steps ran against a post and wrecked the buggy. Under these circumstances the court should have charged the jury with reference to the intent of appellant. While there was violence inflicted and the law will usually presume as a legal presumption that injury was intended, yet that is not a conclusive presumption and the accused may show facts and circumstances which indicate that he did not intend to injure the party. These matters were before the jury, and they should have been charged with reference to that phase of the testimony. While appellant’s conduct was reprehensible and for which there could hardly be any excuse given, yet if his horse ran away with him, the lines were broken, or the horse became in any way unmanageable and not subject to his control, and in this condition the injured party was hurt', it would not be an assault. This phase of the law should have been given in charge to the jury. The court’s charge .eliminated this phase of the law and the special instruction was refused.

We would also suggest that ripon another trial all definitions of assault be omitted except such as called for by the information and sustained by the facts. The charge should be limited to the facts and the allegations in the information. However reprehensible and outrageous the conduct of the accused was on this occasion, he should be tried by the law applicable to the pleadings and evidence.

For the reasons indicated, the judgment is reversed and the cause is remanded.  