An information was filed in the County Court of Coryell County, by the county attorney, charging the appellant and one Tim C. Chambers with an aggravated assault, under art. 488, subdiv. 5, of the Criminal Code. The appellant, Jarnigan, was alone tried and convicted.
To warrant a conviction for an assault of any kind, there must be a showing both of ability and intention to commit a battery. Art. 475 of the Criminal Code reads as follows, to wit: “ The use of any unlawful violence upon the person of another, with intenjb to injure him, whatever be the means or the degree of violence used, is an assault and battery. 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.”
Art. 476. “ 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.”
Art. 482. “By the terms, ‘ coupled with an ability to commit,’ as used in art. 475, is meant, first, that the person making the assault must be in such a position that, if not prevented, he may inflict a battery upon the person assailed; and, second, that he must be within such distance of the person assailed as to make it within his power to commit a battery by the use of the means with which he attempts it.” No words can, of themselves, amount to an assault.
*468It is difficult to draw the precise line which separates violence menaced from violence begun to be executed ; for, until the execution of it is begun, there can be no assault. It is sufficient if there be an act done indicating an intention to commit a battery, immediately coupled with the ability to do it. The court did not charge all the law applicable to the case.
We think the court should have given the first and second charges asked by the appellant. These charges were peculiarly applicable to the facts proved on the trial, and embodied the law as we find it in said art. 482 of the Code.
Because the court refused to give .these special instructions, and because no evidence appears in the statement of facts which establishes an assault, the judgment is reversed and the cause remanded.
Reversed and remanded.