Appellant was convicted of an aggravated assault, and his punishment assessed at a fine of $25, and he appeals. The evidence on the part of the State shows that defendant was an adult male, and that, on or about the date alleged in the indictment, Maggie Walsh, a little girl about eight years of age, came into his shop. No one was present at the time, and she states that "he went around behind the red thing that was in the shop, and sat down on a box, and *Page 281 caught me, and held me between his legs. He had his penis out, and I saw it. I tried to get loose and told him to let me go. He held me there about five minutes, and let me loose. My back was to him. His pants were unbuttoned, and his penis was out, and hanging down, and he said: 'I have shown you mine; now show me yours.' He gave me an orange and a nickel, and told me not to tell anybody about it." On cross-examination she said: "When defendant caught me, I was standing around behind that red thing. He was sitting on a box. He just caught me, and pulled me down — caught me with his hands. He held me with his hands around me. While he held me, I was standing between his legs. He never said anything while he was holding me. When I got loose, I turned around, and saw his pants unbuttoned, and his penis hanging down, and he then said: 'I have showed you mine; now show me yours.' While he held me, he did not try to lift my clothes. He did not touch my privates. He did not put his hands on my legs; he only held me." This was all the testimony on the part of the State as to the act upon which this prosecution was based. The defendant, by his evidence, denied that anything of the kind as stated by the prosecutrix occurred. The court instructed the jury as follows: "You are further instructed that, when an injury is caused by violence to the person, the intent to injure is presumed, and it rests upon the person inflicting the injury to show the accident or innocent intention. The injury intended may be either bodily pain, constraint, a sense of shame, or other disagreeable emotion of the mind." Appellant objected to this charge, as stated by him, "because the evidence did not warrant the charge, there being no evidence to show any injury to the person of Maggie Walsh by the defendant, either by bodily pain, constraint, a sense of shame, or other disagreeable emotion of the mind, and because it was calculated to make the impression on the jury that there had been in injury inflicted, and was calculated to lead the jury to believe that it devolved upon the defendant to show an accident or innocent intent, when in fact no injury had been committed requiring such showing on his part." This charge was given in connection with the main charge, defining an assault, and is in the very language of the statute Penal Code, Art. 588) and, when considered in connection with the main charge, was not calculated to mislead the jury, because the court required the jury to find beyond a reasonable doubt that the accused intended to injure the prosecutrix. The language of the charge is as follows: "You are charged that if you believe from the evidence that the defendant did * * * upon the person of Maggie Walsh commit an assault, by making use of any violent or indecent familiarity towards of upon her, with intent to injure her, or that he indecently and violently fondled and handled her person with intent to injure her, then you must find him guilty; and, on the other hand, if you do not so find and believe, you will acquit him." We think there is enough in this case to show that the assaulted party, the little girl, Maggie Walsh, was held by the defendant against her *Page 282 consent. In her testimony she speaks of him "holding" her. Now, she does not say in so many words that she did not give her consent. Still, she states that she tried to get loose; that she told him to let her go. It is not claimed that he had any right to constrain or hold her against her will. The circumstance, the exhibition of his person, his remarks — all show that his acts were calculated to produce a sense of shame or other disagreeable emotion of the mind in a person of even the tender years of Maggie Walsh. While she does not state that this was the effect, her conduct, as testified to by herself, indicates this. He gave her an orange and a nickel and told her not to tell anybody about it. This was an attempt on the part of a grown man to tamper with, pervert and degrade a little girl; and, in our opinion, it was an assault committed against her will, and under circumstances which produced in her a sense of constraint and shame. The court did not err in giving the charge in question. The remarks heretofore made apply to the defendant's second bill of exceptions, and also to the refusal of the court to give appellant's requested charge. Although the defendant denied the assault, the jury believed the statement of Maggie Walsh, and found the defendant guilty; and we see no reason for disturbing their verdict. The judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.