Reconsidering this case, we are of opinion that we were wrong in affirming it. The evidence, we think, does show want of intent on the part of appellant to commit an assault. The collision between his automobile and that in which the injured party was riding appears to have been an accident brought about by the negligence of appellant, but without intent to do so, and we were mistaken in concluding that under the statute defining assault and battery and aggravated assault, in force at the time of the occurrence, the appellant was guilty of the offense charged. Perkins v. State, 62 Tex.Crim. Rep.; Ward v. State,68 Tex. Crim. 154, 151 S.W. Rep., 1075.
Section 35 of the Act of 1917, chapter 207, is as follows: "If any driver or operator of a motor vehicle or motorcycle upon the public highways of this State shall wilfully or with gross negligence, collide with, or cause injury to any other person upon such highway, he shall be held guilty of aggravated assault, and shall be punished accordingly, unless such injuries result in death, in which event said party so offending shall be dealt with under the general law of homicide."
This Act became effective subsequent to the time that the injury *Page 483 upon which this prosecution is based occurred, and is indicative, we think, of the legislative view that the statutes on aggravated assault previously existing would not embrace an accidental occurrence such as that upon which this prosecution is founded.
For these reasons the motion for rehearing is granted, the judgment affirming the case set aside, and the judgment of the lower court reversed and the cause remanded.
Reversed and remanded.