ON MOTION FOR REHEARING
GRAVES, Presiding Judge.The Criminal District Attorney of Smith County has filed a motion for rehearing in this case and calls our special attention to the statute relative to an assault. Article 1138, P.C., denounces as an assault and battery “the use of any unlawful violence upon the person of another with intent to injure him, whatever be the means or the degree of violence used.” The statute also declares that “any attempt to commit a battery, or any threatening gesture showing in itself or by words accompanying it, an immediate intention, coupled with an ability to commit a battery, is an assault.”
Article 1139, P.C., goes further and says:
“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. The injury intended may be either bodily pain, constraint, a sense of shame or other disagreeable emotion of the mind.”
Under Article 1147, P.C., an assault or battery becomes aggravated when committed under any of the following circumstances :
“Sec. 5. When committed by an adult male upon the person of a female or child, or by an adult female upon the person of a child.”
In the present instance, we have the following facts shown in the record by the testimony of the complaining female:
*319“Q. Now, Mr. Jones, according to your testimony, didn’t hurt you in any way, did he? A. He grabbed me by the hand.
“Q. Did he twist your arm? A. He grabed me. I was at one end of the table and he was at the other, and he grabbed me and pulled me across the table, trying to pull me across the table.
“Q. And you say you jerked loose and ran? A. Yes, sir, I jerked loose and ran.”
It is further shown that the prosecutrix ran out in the back yard and stayed there as long as the appellant was in her home. She testified further:
“He didn’t come, but he told me he would come back the next week, and bring me a dress and a pair of shoes. *** No, he didn’t come back, because I turned him in.”
This cause was reversed in our original opinion because of the fact that the court failed to respond to an objection to Paragraph 3 of the charge as follows:
“Because the Court failed to charge and instruct the Jury that even though the Defendant placed his hand on the prosecutrix’ arm or hand as testified to by her, that unless same caused her a sense of shame, constraint, or other disagreeable emotion of the mind, that the Defendant should be acquitted, which failure to so charge was material error, and was calculated to injure the rights of the Defendant.”
In other words, a reversal was had herein because the court failed to instruct the jury that even though the defendant did place his hand on the prosecutrix’ arm or hand, as testified to by her, that unless the same caused her a sense of shame, constraint or other disagreeable emotion of the mind, then the defendant should be acquitted.
It is the state’s contention that the “disagreeable emotion of the mind” does not appear in this case, nor does it have any bearing thereon in the presence of the actual assault upon the person of the complaining witness. It is not necessary in order to show any injury that such emotion accompany the act of the appellant. Article 1139, P.C., presumes an injury if actual violence took place or any threatening gesture showing an immediate intention coupled with an ability to commit a battery. In this instance, the state contends, and we think correctly so, that *320any unlawful violence upon the part of the appellant herein, he being an adult male and the complaining witness being a female, that the intent to injure is presumed by virtue of this statute.
The case of Shields v. State, 39 Texas Cr. R. 13, 44 S.W. 844, cited in our original opinion, does not seem to be in point in this matter. In that case, the accused denied having touched the prosecutrix, but admitted that he proposed an act of carnal intercourse with her and that she became indignant. He also offered to prove that she was an unchaste woman and that he had reason to believe that she would permit him to copulate with her. The court was asked to give the following charge:
“If the defendant took hold of the arm of the said Tex Lynn, but did so with no intent to injure her or her feeling, and had probable ground to believe, and did believe, that such taking hold of her arm would not be objected to by her, the said Tex Lynn, or would not be offensive to her or her feelings, then he would not be guilty of any offense, and you will acquit the defendant.”
This charge was refused by the court, and under the circumstances of that case, we think it should have been given, the contention being that the act of the accused caused no injury and none was intended if not a sense of shame or other disagreeable emotion of the mind, thus falling within the category of an aggravated assault.
We also cited the case of Koen v. State, 50 Texas Cr. R. 145, 95 S.W. 114, in which it appears that the accused kissed the prosecutrix with her consent; she being a relative of his, she thought nothing of it; that subsequently he put his arm around her and began to fondle her dress to which she objected and told him to quit and he desisted. He afterwards put his hand on her legs and she made him quit; that he “offered her $10 if she would be good to him” which she declined. She admitted that she went on to town with him, ate dinner with him, and he bought her a dress which she carried home with her. She made no statement to her husband about this matter until some two or three days thereafter. It was held in that case that under the peculiar circumstances thereof and the continued association of the complaining witness with the accused, the court should have embraced in his charge the proposition that if the accused used violence to the person of the prosecutrix with the intent to injure her and fondle her person against her will and consent, and that such acts or conduct on the part of the ac*321cused created in the mind of the prosecutrix a sense of shame or other disagreeable emotion of the mind, that the same would constitute an aggravated assault, and they should so find. It seems that there was some question as to whether or not this was an assault upon this person and whether or not these advances created in her mind a sense of shame. We do not think that either one of these cases is in point herein.
We think that under the facts of the present case the appellant committed an assault, that is, unlawful violence to this prosecutrix by the use of his hand in pulling her over and against the table.
It is worthy of note that appellant denied even his presence at the home of the prosecutrix and said that he was not there at the time, and that therefore he could not have committed any violence upon her person. Under the circumstances of this case, we think that the appellant committed an assault upon the person of the prosecutrix, he being an adult male and she being a female; that any assault thus committed by him reaches the dignity of an aggravated assault. Under the facts here present, we do not think a sense of shame enters into the disposition of this case.
Thus believing, the state’s motion for rehearing is granted, the order of reversal is set aside, and the cause is now affirmed.