In our original opinion we held that appellant, tho a minor, could be convicted of an aggravated assault under an indictment charging assault to rape, such conviction being based on facts in evidence supporting any of the subdivisions of Article 1022 of our Penal Code, except subdivision 5. In his charge to the jury in this *Page 430 case the trial court instructed them that any indecent familiarity with the person of a female by a male person against the will and without the consent of such female was an aggravated assault, and that if they found such to be the fact they should convict.
In his motion for rehearing appellant contends that facts comprehended and submitted in said charge do not make out a case of aggravated assault under our statutes. An examination of the only objection made to said charge of the court, and also the bill of exceptions taken to the failure of said court to give a special charge on simple assault, makes it apparent that appellant's contention along this line, in the trial court, was confined to the fact that he was a minor. We are of opinion that, irrespective of the question of minority, a male person on trial under an indictment such as appears in the instant case may be convicted of aggravated assault upon proof of indecent familiarity with the person of a female against her will and without her consent. The question is not regarded by us as an open one in this State.
The language of our statutes defining aggravated assault is the same now as when the George case, 11 Texas Crim. App., 95, and the Slawson case, 39 Tex.Crim. Rep., and other cases, were decided. As early as Pefferling v. State, 40 Tex. 492, our Supreme Court said: "Obviously there is a distinction between an assault to commit rape and an assault to have improper connection. Any such violent or indecent familiarity with the person of a female against her will, when the latter is the extent of the purpose and intent of the aggressor, is an aggravated assault and should be punished as such." As far as we have been able to find this has been the uniform holding of our court since. In the Slawson case, supra, a unanimous court having before them the single question now under discussion and here urged as error by this appellant, held that for a male person to place his hands upon the privates of a female against her will and without her consent was an aggravated assault under the terms of subdivision 6 of Article 1022, Penal Code, irrespective of the age of the accused. In combating the correctness of the doctrine handed down in the Slawson case appellant seeks to invoke the rule of construction known as noscitur a sociis. We do not think same applicable. It is true that a term, word or phrase may be understood or recognized from the company it keeps or in which it is found, but the intent and use of said rule as we understand it, is to reach the true purport and meaning of a word, term or phrase, which is grouped with others standing in the same relation, some of which may be susceptible of more than one meaning, while others are not.
Said subdivision 6 of Article 1022, supra, states that any assault becomes aggravated "when the instrument or means used is such as inflicts disgrace, as an assault or battery with a whip or cowhide." In the Slawson case, supra, after careful consideration of the question involved, we held that by naming a whip or cowhide in said subdivision, as illustrations of the instruments by which disgrace might be inflicted, *Page 431 it was not intended by the framers of our law to limit such assaults to those made by the character of instruments named. We there held that any means used in making such assault, the natural tendency of which was to disgrace the assaulted party, would make such an assault aggravated under said subdivision. We are now constrained to agree with said holding and to conclude that the terms of said subdivision 6, taken and construed both as heretofore held by this court, and in the sense in which the words and phrases thereof would be understood in common language, are broad enough to make the act of a male person guilty of indecent familiarity with a female without her consent and against her will, an aggravated assault thereunder.
A special charge that even tho appellant used undue familiarity or indecent conduct with the person of the prosecutrix, yet if he did not intend to injure her or cause her a sense of shame or other disagreeable emotion of mind, and he had good reason to believe his advances made to her would not create in her a sense of shame, or that they would not in fact do so, he would be guilty of no higher offense than simple assault — would not be a correct statement of law. The same omits the element of her lack of consent and will and it is also true that if what appellant did in the premises did not create any sense of shame and was not against the will and consent of the prosecutrix, he would be guilty of no offense. We further observe that there appears no sort of support in the evidence of any theory that appellant believed that his conduct was acceptable to the prosecutrix.
Appellant now contends that the court's definition of aggravated assault in the charge was erroneous. We do not think so, under the undisputed facts in this case, but if said contention was well founded, it would not amount to reversible error, because there was no exception to said definition as given in the charge, and no special instruction asked correcting same, as is the well settled rule in misdemeanor cases. Willingham v. State, 62 Tex.Crim. Rep.; Giles v. State, 66 Tex. Crim. 638, 148 S.W. Rep., 317; Brown v. State, 73 Tex. Crim. 577, 166 S.W. Rep., 508. In this connection we observe that it was in testimony without contradiction that this appellant placed his hands upon the limbs and privates of prosecutrix without her consent and against her will. In this condition of the record it is not believed necessary for the trial court to have told the jury they must believe said assault was with an instrument or means which could inflict disgrace, or that the omission of such charge was fundamentally erroneous. As stated above, no objection was made to said charge, nor any corrective charge asked on the subject. We are forbidden by our statutes from reversing a cause unless the error presented was calculated to injure the rights of the accused on the case as made by the record, and if it should be conceded that the charge herein would have more fully conformed to the statutory definition had it included the matter last mentioned, still, its omission was in no wise calculated to injure the appellant, inasmuch as this court has uniformly held that *Page 432 such an assault as appears by the undisputed testimony herein, is with such means and instrument as inflicts disgrace.
This disposes of the contentions presented in said motion, and the same will be overruled.
Overruled