Jones v. State

MORRISON, Judge.

The offense is aggravated assault; the punishment, twelve months in jail and a fine of $250.00. The grounds of aggravation alleged were that the accused was an adult male and the injured party a female.

The prosecuting witness testified that the appellant, whom she had known for many years, came to her home one afternoon in the absence of her husband and, during the course of his visit, made an improper proposal in that he offered her $5.00 for her sexual favors and took hold of her left hand. She stated that she refused such offer, withdrew her hand, and that the appellant left stating that he would come back the next week and bring her a dress and a pair of shoes. This incident was *317alleged to have occurred on June 4, which was Thursday. Prosecutrix did not report it to her husband or to anyone else until Sunday after she had visited in the home of her parents, who had had some financial misunderstandings with the appellant.

According to the prosecutrix, the most the appellant did, outside of the indecent proposal, was to take hold of her hand, which she immediately extricated.

Appellant’s plea was that of alibi, and in this he was in some measure supported by his witnesses.

The appellant objected to the court’s charge, among other things, “because same fails to charge and instruct the Jury that even though the Defendant did place his hand on Prosecutrix’ arm, as testified to by her, that unless same caused her a sense of shame, constraint, or other disagreeable emotion of the mind, or they have a reasonable doubt thereof, that the Defendant should be acquitted.”

It will be noted that the instant trial occurred on July 31, 1953. Article 658, V.A.C.C.P., as amended by the 53rd Legislature, went into effect on May 19, 1953. Since its amendment an objection to a charge in a misdemeanor case is sufficient to preserve the error, and no specially requested charge is necessary.

In Shields v. State, 39 Texas Cr. Rep. 13, 44 S.W. 844, in discussing a requested instruction similar to the objection before us in this case, we said:

“In order to constitute an assault and battery, there must be an intent to injure by the means used. Now, in this case there was no physical injury complained if, the gravamen of the assault being that the feelings of the prosecutrix were hurt by the indecent proposal, in connection with a demonstration of appellant, which caused her a sense of shame.”

The Shields case was reversed because of the failure of the court to give a requested charge.

In Koen v. State, 50 Texas Cr. Rep. 145, 95 S.W. 114, the facts reveal that the appellant and the prosecutrix rode into the city of Hamilton in a wagon. During the course of the journey, they kissed, and he put his arm around her and fondled her bosom, and when she objected he desisted. He then offered her various sums of money for her sexual favors, which she also *318declined. Upon their arrival in Hamilton appellant bought prosecutrix a dress, and she did not report the incident to her husband until three days later.

In discussing objections to the charge, we said that the same should have included therein as an element of the offense a finding that the acts and conduct of the appellant created in the mind of the prosecutrix a sense of shame or other disagreeable emotion of the mind. We reversed the conviction, holding the charge defective in that respect.

For the error in the charge before us, the judgment is reversed and the cause remanded.