Appellant was convicted of aggravated assault under article 484 of the Penal Code, which defines an assault, and subdivision 8 of article 496, making an assault aggravated when committed with a deadly weapon.
The facts constituting an assault, as defined in subdivision S of article 488 of the Penal Code, are not alleged in the indictment; hence, the sufficiency of the evidence to constitute an assault in this case must be tested by article 484 of the Penal Code.
The use of any unlawful violence upon the person of another, with intent to injure him, whatever be the means or degree of violence used, is an assault and battery. The injury intended may be either bodily harm, constraint, a sense of shame or other disagreeable emotion of the mind. 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.
We will restate, so that the law clearly applicable to the facts of this case may be presented.
The use of an unlawful violence upon the person of Strane, with the intent to constrain him, or with the intent to produce in the mind of Strane a sense of shame or other disagreeable emotion, is an assault and battery. Any attempt to use unlawful violence upon the person of Strane, whatever be the means or the degree of violence used, with intent to constrain him, or with intent to produce in his mind a sense of shame, etc., is an assault. Or any threatening gesture, showing' in itself or by words accompanying it, an immediate intention, coupled with an ability, to use unlawful violence upon the person of Strane, with intent to constrain him, or to produce in his mind a sense of shame or other disagreeable emotion, is an assault; and if the means used was a deadly weapon, the assault would be aggravated.
How, it will be seen that, under article 484, to .constitute an assault there must be an attempt to use violence upon the person of another, or from the gestures alone, or from the gesture accompanied with words, coupled with the ability, there must be *247shown an immediate intention to use violence upon the person of another.
Opinion delivered March 14, 1888.Concede that the prosecutor was constrained—concede that a sense of shame or the most disagreeable emotion was produced in his mind, and that these injuries were intended by appellant ■—still, if there was no attempt to inflict violence upon his person, or from defendant’s gestures, or gestures accompanied with words, coupled with ability, it does not appear that there was an intention to inflict violence upon the person of Strane, there was no assault. Though the injury is clearly intended by the accused, and may have been produced, yet, if not effected through the attempt, etc., to use violence upon the person, there can be no assault under article 484.
For, if this proposition be incorrect, an assault can be committed by words alone. To illustrate: A meets a lady upon the streets and publicly accuses her of being a wanton. Mo ordinary or extreme violence inflicted upon her person, no amount of physical pain would be equal to the injury thus inflicted; and yet this would not be an assault.
The evidence in this case failing to show an attempt to inflict violence upon the person of Strane, and it also failing to appear from appellant’s gestures, or gestures accompanied with words, that it was appellant’s immediate intention to inflict violence upon his person, this conviction is without proof and must be set aside. The judgment is reversed and the cause remanded.
Beversed and remanded.