McConnell v. State

• Decision Date: 07 April 1888
• Citation: 8 S.W. 275
• Parties: McCONNELL v. STATE.
• Court: Texas Court of Appeals

Page 275

8 S.W. 275

McCONNELL v. STATE.

Court of Appeals of Texas.

April 7, 1888.

Appeal from Cooke county court; J. E. HAYWORTH, Judge.

Appellant, Isom McConnell, was convicted of assault and battery. Pen. Code, art. 484, provides: "The use of any unlawful violence upon the person of another, with intent to injure him, whatever be the means or degree of violence used, is an assault and battery."

A. M. Thomason, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

An "intent to injure" is an element absolutely essential to constitute the offense of assault and battery. Pen. Code, art. 484. It is true that, when an injury is caused by violence to the person, the intent to injure is presumed, and it rests with the person inflicting the injury to show the accident or innocent intention. Pen. Code, art. 485. In this case the alleged injured party swore positively as a witness that the defendant did not intend to injure her, and did not hurt her; that she made the complaint against him, at the time it was made, because she was mad at him. Her evidence was the only evidence adduced as to the commission of the offense, and, according to that evidence, the prosecution did not make out the case; wherefore, because the judgment is against the evidence, it is reversed, and the cause remanded. Ware v. State, 24 Tex. App. 521, 7 S. W. Rep. 240. Reversed and remanded.