The appellant was tried and convicted of an aggravated assault and battery, charged to have been *312made upon one Bama Jeffries, a female. In order to present clearly the point raised in the record, it is necessary to name the constituent elements of an assault and battery.
The use of any unlawful violence upon the person of another, with the intent to injure, is an assault and battery. From this, two acts must concur, one physical and the other mental,-—-the act and the accompanying intent. There must be a physical act done by the assailant, which takes effect upon the person of the party assailed. The slightest force is sufficient; the least touching of the person of another will suffice. The act done or force used which takes effect must be intended, otherwise it would be accidental and therefore not unlawful. To the intended act or force must be added the intent to injure the party assailed. The injury intended may be to the feelings or mind, as well as to the person. The violence being used or the act being done, if the natural consequence of the act or violence is an injury, the law presumes this injury to have been intended, unless it be shown that the intention was innocent and not culpable. When an injury is actually inflicted upon the person, the presumption that it was intended obtains. If to the mind, or feelings, the act or violence used must in its nature be calculated to wound or injure before the intention to injure will be presumed. When it is sought to convict for an injury to the feelings or mind, the character of a person assaulted with all of the surrounding facts become of vital importance in determining whether there was an intent to injure.
This is emphatically true with the case now before us. The facts constituting the assault and battery in this case, and relied upon by the State, are: “that the defendant took hold of the prosecutrix, and attempted to have carnal knowledge of her against her consent, thereby wounding her feelings.” The issue was solely the intent *313to injure her feelings. The defendant denied the intent, and also that there was in fact an injury inflicted upon the mind or feelings of this prosecutrix. The statement of facts shows the contest to have been over this fact,— did the defendant intend to wound the feelings of the prosecutrix % ^ The acts or violence used upon the person of the prosecutrix being in their nature calculated to wound her feelings, the law would presume the intent. But this is not a conclusive presumption; it is open to proof, and the real fact may be shown. And as bearing directly upon this point, the defendant by attorney asked the witness Bama Jeffries, whether or not the defendant had ever had sexual intercourse with her prior to the time of the assault and battery. This was objected to by the county attorney upon the ground that the answer to such question would render the witness infamous. The court instructed the witness that she need not answer any question the answers to which would tend to criminate her. The witness refusing to answer, the defendant excepted.
It is the duty and province of the court to judge whether any direct answer to the question which may be proposed will furnish evidence against the witness. If such answer may disclose a fact which forms a necessary and essential link in a chain of testimony which would be sufficient to convict him of any crime, he is not bound to answer it so as to furnish matter for his conviction.” “In such a case the witness must himself judge what his answer will he, and if he says on oath he cannot answer without accusing himself, he camiot be compelled to answer.” United States v. Burr, 1 Rob. R. 207; The People v. Mather, 4 Wend. 254; Floyd v. State, 7 Texas, 215.
Under another rule upon this subject it is unnecessary to decide whether this question embraced an answer which would form a necessary link in the chain of evi*314clence required to convict of an offense. This could occur only in case of a prosecution for adultery; and under our Code this is rendered quite doubtful. The rule referred to is this: “Awitness cannot be compelled to answer when his answer will subject him to a penalty, or will have a tendency to degrade his moral character, unless his evidence bears directly on the issue. ” People v. Lohman, 2 Barb. 216; Lohman v. The People, 1 Const. 379; People v. Rector, 19 Wend. 569.
Does the proposed question bear directly on the issue? Evidently it does. If so, the defendant was entitled to it; and the court should have compelled the witness to an answer of the question. The intention to wound the feelings of the prosecutrix being the issue, acts of lewdness between these parties were of the highest importance as tending to elucidate this, the only issue. Suppose the prosecutrix to have been a bawd or the inmate of a house of ill-fame, and this had been known to the defendant, could any sane person presume from the acts or violence, so called, used in this case, that there was an intention to insult her modest feelings and arouse her virtuous indignation? By no means. We have none so credulous. If the probabilities should be against the intent in the above case, certainly former acts of lewdness between the parties would be very material evidence tending to negative the intent to wound the feelings of the prosecutrix. Not only so, but these acts would tend to call in question,— raise a doubt,— of actual injury as well as the intent to injure. We are of the opinion, therefore, that the court below erred in not compelling the witness to answer the question.
We will not'pass upon the sufficiency of the evidence to support the verdict, further than to observe that its intrinsic weakness intensified the error above noticed.
The judgment is reversed and the cause remanded.
Reversed and remanded.