
    HOPSON v. STATE.
    (No. 5284.)
    (Court of Criminal Appeals of Texas.
    Feb. 19, 1919.)
    1. Criminal Law <§=^3.104(3) — Misdemeanors.
    In misdemeanor case, where there is no statement of facts copied in transcript or certified by clerk, appellate court cannot consider what purports to be statement of facts filed in a separate document.
    2. Assault and Battery <§=>54 — Aggravated Assault on Female.
    In order to convict of aggravated assault upon a female, it is not necessary to show that there was created in mind of prosecutrix a sense of shame or other disagreeable emotion of mind.
    3. Criminal Law <§p>761(6) — Aggravated Assault — Instructions Assuming Facts.
    In prosecution for aggravated assault upon female, court may assume in its charge fact that defendant is adult male person and prosecutrix a female, unless evidence controverts issue.
    4. Criminal Law <§=>1144(3.4) — Review — Instructions.
    Where main charge appears to properly present law of case and there is no evidence before appellate court which would necessitate giving of such charge, appellate court will hold that requested charge was properly refused'.
    5. Assault and Battery <§=>54 — Aggravated Assault on Female.
    In prosecution for aggravated assault on female, that female was not adult would not render assault simple assault.
    6. Assault and Battery <§=>54 — Aggravated Assault — Assault on Female.
    In order to convict one of aggravated assault upon female, it is not necessary to show that indecent familiarity injured person of pros-ecutrix.
    Appeal from Angelina County Court; B. B. Robb, Judge.
    Steve Hopson was convicted of aggravated assault, and he appeals.
    Affirmed.
    K. W. Denman, of Lubkin, for appellant. E. A. Berry, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in this case of an aggravated assault upon an indictment containing three counts, each of which contains the allegation of an as>-sault, and that the appellant was an adult male and the prosecutrix a female; the second and third counts presenting different phases of assault as made by the statutes of this state.

There is no statement of facts copied in the transcript or certified by the clerk of the county court of Angelina county, and as this is a misdemeanor case, under the uniform holdings of this court, we cannot consider what purports to he a statement of facts filed in a separate document and brought to this court in that condition. Carney v. State, 63 Tex. Cr. R. 370, 140 S. W. 440; Wagoner y. State, 63 Tex. Cr. R. 180, 140 S. W. 339; Brogdon v. State, 63 Tex. Cr. R. 473, 140 S. W. 353; Guill v. State, 66 Tex. Cr. R. 332, 146 S. W. 198; Johnson v. State, 79 Tex. Cr. R. 544, 186 S. W. 841.

Appellant presents some exceptions to the court’s charge: First, because it fails to submit the question of intent to injure; second, because the same fails to submit to the jury whether there was'-created in the mind of the prosecutrix the sense of shame or other disagreeable emotion of the mind; third, that the court assumes that the defendant is an adult male and that the prosecutrix is a female; and, fourth, because the court failed to charge on simple assault.

Noticing them in their order, it appears to us that the court did charge on the intent to injure in the main charge, in his definition of an “assault,” one of the elements of which is stated to be that it must be unlawful violence to the person of another with intent to injure. As to the second objection, there is nothing in the statute which requires that there be created in the mind of the prosecutrix by an assault a sense of shame, etc., and without any statement of faqts before us we cannot tell whether there was any contest upon this issue, and no evidence of anything showing the necessity for such instruction is contained in the bill of exceptions. As to the third exception, it has been held by this court more than once that, unless the evidence controverts the issue, the court may assume in its charge the fact that the defendant is an adult male person and the prosecutrix a female, in a case where that is the ground of aggravation. These exceptions to the court’s charge all appear, in one way or another, in special requested charges to his main charge; but as the main charge appears to properly present the law of the case, and as we have no evidence before us, either in bill of exceptions to the court’s action in refusing the special charges, or otherwise, which would necessitate tne giving of such charges, the same, in our opinion, were properly refused by the court.

The requested charge on simple assault seems to be predicated on the proposition that the evidence shows that the prose-cutrix, Rena Bingham, is not an adult. This would not inject the element of simple assault in the case and would not make such a charge proper. Whether Rena Bingham was an adult or not is not an issue, it being only alleged that she was a female. Defendant’s special charge that they cannot convict even though he had been indecently familiar with the prosecutrix, unless his acts injured her person, do not present a correct proposition of law. Rogers v. State, 40 Tex. Cr. R. 355, 50 S. W. 338; Slawson v. State, 39 Tex. Cr. R. 176, 45 S. W. 575, ,73 Am. St. Rep. 914.

The record, as before us, presents no reversible error, and the judgment of the -lower court will be affirmed. 
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