
    MILLER v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1912.)
    1. Cbiminal Law (§ 351) — Admission of Evidence — Evasion OF ARREST.
    In a prosecution for making a criminal assault on a young girl, in which the state’s evidence tended to show that accused had left the state to avoid arrest, and had returned and was in hiding in his father’s house when arrested, the officer who arrested him testified that, when he went to the house, accused’s mother said, “Don’t go in there, you will scare him to ■death, he is heavily armed, and he will die before he will give up,” and that witness heard a voice from the room which sounded like that ■of accused, saying, “Ma, I will die before I will give up.” Held, that the evidence of the ■officer of the attempt to evade arrest was admissible as tending-to show guilt.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 776, 778-785; Dec. Dig. § '351.]
    2. Assault and Battery (§ 82) — Presumptuous — Intent..
    An intent to commit a criminal assault upon a girl can be presumed from the fact of actual injury to prosecutrix so as to cast the burden of proof on-accused to show that his act was accidental or innocent.
    [Ed. Note. — For other cases, see Assault anBattery, Cent. Dig. § 127; Dec. Dig. § 82.]
    3. Assault and Battery (§ 54) — Aggravated Assault — Indecent Familiarity — Simple Assault.
    Indecent familiarity upon a female’s person by an adult male constitutes an aggravated assault, or, if the male be not an adult, a simple assault.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 75-78; Dec. Dig. § 54.]
    4.Criminal Law (§ 755%) — Instructions— Comment on Evidence.
    An instruction in a prosecution for criminal assault upon a young girl that, where an injury is actually caused by violence to the person injured, the intent to injure is presumed, was not a comment upon the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1765; Dec. Dig. § 755%.]
    5.Criminal Law (§ 1056) — Appeal — Exceptions to Instructions.
    Exceptions must be reserved to instructions given in a misdemeanor case at the time they are given, and a special charge covering the matter requested and an exception taken to the refusal to give the request, in order to have the instructions reviewed; it being too late to first except to instructions in the motion for new trial.
    [Ed. Note. — 'For other cases, Law, Cent. Dig. §§ 2668, 2670; 1056.] see Criminal Dec. Dig. §
    6. Witnesses (§ 350) — Impeachment — Commission of Misdemeanor.
    It was error to permit a'witness called by accused to be asked for purposes of impeachment on cross-examination whether he had -been indicted for gambling; gambling not being a felony, or involving moral turpitude.
    [Ed. Note. — For other cases, see Witnesses, Cent Dig. §§ 1140-1149; Dee. Dig. § 350.]
    7. Criminal Law (§ 1170%) — Appeal — Harmless Error.
    In a prosecution for criminal assault, prosecutrix’s father was asked on cross-examination if he did not tell R. several days after the alleged assault that he rode west on the road at the time, but did not see any one, which witness denied, when R. testified that prosecutrix’s father did make that statement, and R. was asked on cross-examination by the state if he had not been indicted for gambling, which he admitted. Prosecutrix’s father had testified to no facts which were material in determining whether or not the man he testified to seeing on the road was accused, but other witnesses testified to seeing accused going west on the road, and accused himself admitted that he was on the road. Held that, R.’s evidence being immaterial, error in permitting him to be impeached by showing that he was indicted for gambling was not reversible.
    [Ed. Note. — For other cases, see Criminal Law,^Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170½.
    
    Appeal from Collin County Court; H. L. Davis, Judge.
    John Miller was convicted for assaulting a girl seven years of age, and he appeals.
    Affirmed.
    Abernathy & Abernathy, of McKinney, for appellant. C. E- Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted for making an assault on a girl about seven years of age; he being also a minor, and his punishment assessed at a fine of $25.

J. F. Bradshaw testified he was an officer, and he heard of the alleged assault the day after it occurred; that he did not see the defendant for about three weeks or a month thereafter. The testimony shows that defendant did not sleep at home the night after he was alleged to have assaulted the little girl, and he left and went to Oklahoma the next day, and had just returned home when the officer went there to arrest him. Defendant’s father lived in a two-room house, and Mr. Bradshaw says he walked up on the gallery, talking to the father and mother, when the mother said something in a tolerably loud tone of voice. “When she spoke, there was something said by some one in the room. I heard some one say: ‘Ma, I will die before I will give up.’ The voice seemed to come from the west end of the house, northwest of where I was. I had heard the defendant speak a little before that time. I have heard him speak some since. I think there is something particular about his voice. It seems like he speaks through his nose. He stammers like he can’t speak plain, or something like that. There was a peculiarity in the voice that I heard in the room. From what I have heard of his voice and speech and conversation since that time the voice that I heard in that room that afternoon sounded like his. The voice said, ‘Ma, I will die before I will give up.’ The defendant afterwards came to the door of the room, the door in the south side of the east room of the house where I was standing. He came to the door after I heard the voice in the room. I-Ie came from the west part of the east room. I could not tell whether he came out of the west room or not. Just before X heard the voice in the room his mother said to me, ‘Don’t go in there, don’t go in there, you' will scare him to death. He is heavily armed and he will die before he will give up.’ That was all she said. It was right after I heard the voice in the room that defendant came to the door of the east room. It was not over a minute.”

Appellant .objected to the witness testifying what the mother said, and what was said by the person in the room. As it appears that Mr. Bradshaw was there for the purpose of arresting defendant, and defendant was in close enough proximity to have heard what was said, and the facts and circumstances -rendering it almost conclusive that it was defendant who made the remark inside of the room, there was no error in admitting this testimony. The state’s evidence would raise the issue that defendant was avoiding arrest, had left the state to keep from being arrested, and had just returned, and was then in hiding in his father’s house. Holden v. State, 18 Tex. App. 106; 2 Wharton’s Ev. § 1136. That one is seeking to evade arrest is always admissible, and it is a circumstance tending to show that one is guilty of the offense with which he knows he is charged. Benavides v. State, 31 Tex. 579; Sheffield v. State, 43 Tex. 378; Williams v. State, 22 Tex. App. 497, 4 S. W. 64; Aiken v. State, 10 Tex. App. 610; Gilleland v. State, 24 Tex. App. 524, 7 S. W. 241.

We have carefully reviewed the objections to the charge of the court contained in the motion for a new trial, and we are of the opinion they present no error.

Tile testimony of the prosecuting witness would show that defendant met her on the way home from school, caught hold of her, pulled her over in the weeds by the side of the road, arid pulled up her dress, and,' when he did this, she commenced crying, when he let her go. The intent can be presumed from the fact of actual injury to the person charged to be injured. Eor example, in case where a woman was pushed down by an adult male. This is not a conclusive presumption. The effect is to cast the burden of proof on defendant to show that it was an accident, or an action innocent within itself. Rutherford v. State, 13 Tex. App. 92; Atkins v. State, 11 Tex. App. 8; Young v. State, 31 Tex. Cr. R. 24, 19 S. W. 431.

It is further submitted that indecent familiarity upon the person of a female by an adult male, against her will, is an aggravated assault, and, if the man were not an adult, it would be simple assault. Pefferling v. State, 40 Tex. 486; Thompson v. State, 43 Tex. 583; Curry v. State, 4 Tex. App. 574; Ridout v. State, 6 Tex. App. 249; Hemanus v. State, 7 Tex. App. 372; Atkins v. State, 11 Tex. App. 8; George v. State, 11 Tex. App. 95; Saddler v. State, 12 Tex. App. 195; Thomas v. State, 16 Tex. App. 535; Shields v. State, 32 Tex. Cr. R. 498, 23 S. W. 893; Berry v. State, 40 S. W. 984; Hill v. State, 37 Tex. Cr. R. 279, 38 S. W. 987, 39 S. W. 666, 66 Am. St., Rep. 803; Thompson v. State, 89 S. W. 1081.

Paragraph 3 of the main charge does noti assume the injury, but recites that, where an injury is actually caused by violence to the person, the intent to injure is presumed. It is not a comment upon the testimony. Stripling v. State, 47 Tex. Cr. R. 119, 80 S. W. 376, overruling Floyd v. State, 29 Tex. App. 345, 15 S. W. 819; Young v. State, 31 Tex. Cr. R. 26, 19 S. W. 431.

In addition to this, there are no bills of exception to the charge of the court, and, this being a misdemeanor, objections to the charge called to the attention of the court for the first time in the motion for a new trial come too late. Exceptions must be reserved at the time the charge is given, a special charge requested, and an exception taken to the refusal of the court to give such charge. Basquez v. State, 56 Tex. Cr. R. 329, 119 S. W. 861, and cases there cited.

The only other ground presented in a way we can review it is the objection to permitting the state on cross-examination to ask defendant’s witness Renn if he had not been indicted for gambling, and requiring the witness to answer the question. This was error; for gambling is not a felony, and not an offense involving moral turpitude.

But, while error, is it such an error as should result in a reversal of the case? If the witness was a witness to a material fact, it would necessarily result in a reversal, as it was an improper effort to impair the force of the testimony of the witness by discrediting him. The state called as a witness the father of the girl, who testified that he drove to the house and met his little girl when she got home, that he unhitched his horses, and rode back west on the road, and got pretty close to a man on the road, but the man left the road, and went into a field and went in a northwest direction. He did not undertake to identify defendant as the man. On cross-examination he was asked if he did not tell Jim Renn two or three days after the alleged occurrence that he rode west after the occurrence, but did not see any one. He denied making this statement to Renn. Renn was called as a witness, and testified that two or three days after he heard of the occurrence he met Heubsch (the girl’s father), and ' that Heubsch told him that he rode west on the road, but did not see any one. On cross-examination of this witness the state whs permitted to ask him if he had not been indicted for gambling, and he was required to answer the question, and stated he had. It is thus seen that the witness was introduced' to impeach the statement of the girl’s father that he had seen a man on the road wbile riding west. If Mr. Heubsch bad sought to identify defendant as the man he saw, this might be material, but he testified he knew defendant, that he rode up pretty close to the man he claimed to have seen, and did not recognize the man, and testified to no fact which would aid the jury in determining whether or not the man he' saw was defendant; in fact, his testimony would have the contrary tendency, as he testified he knew defendant, and he could not say that he was the man. Defendant himself testifies that he went into the lane north of Mr. Heubsch’s home and went from there on the road towards Anna. It is true he claims he did not meet the prosecuting witness. Sam Hilliburton testifies he saw defendant on this road going west, and defendant told him he was going to Anna. Other witnesses testify to defendant being on this road going west, and these witnesses were not sought to be impeached. Appellant admitting he was on this road, certainly the testimony of the witness Renn was not of that material character which, admitting testimony to discredit, should or ought to result in a reversal of the case. Pettis v. State, 47 Tex. Cr. R. 76, 81 S. W. 312; Henderson v. State, 49 Tex. Cr. R. 269, 91 S. W. 569; Tinsley v. State, 52 Tex. Cr. R. 95, 106 S. W. 347.

The judgment is affirmed.  