To constitute an assault and battery, unlawful violence must be used upon the person of another, and such violence must be used with the intent to injure the person upon whom it is inflicted. Unlawful violence unaccompanied by such intent does not constitute the offense. (Willson’s Texas Crim. Laws, secs. 809, 811.) The intent to injure will be presumed when an injury has been inflicted, but when no injury has been inflicted such presumption will not prevail, and the intent must be proved. (Id., sec. 813.)
In the case before us, conceding that the defendant used unlawful violence upon the person of his mother, the alleged assaulted party, it is not shown that she was injured by such violence either physically or mentally, or that he intended to inflict any injury upon her, but on the contrary the evidence shows that he had no such intention.
In our opinion the verdict is not supported by the evidence, and the trial court erred in refusing the defendant a new trial. The judgment is reversed and the cause is remanded.
Reversed and remanded.