Winkler, J.
The indictment charges -that on October 24, 1879, in Dallas county, the accused “did unlawfully make an aggravated assault and battery upon the person of one Mary Sorrells, and did then and there assault, strike, restrain, illtreat, ill-use, and in violence lay his hands upon her the said Mary Sorrells, she the said Mary Sorrells being then and there a female person, and he the said Atkins being then and there an adult male person, contrary,” etc.
The case being transferred from the District Court, where the indictment was found, to the County Court, for trial, the accused applied for a continuance, alleging that he could not go to trial for the want of the testimony of one Mrs. Virginia Vessels. The application for a continuance was overruled, and the defendant took his bill of exceptions to the ruling of the court. The defendant was tried and convicted, a jury having returned a verdict [13]*13finding the defendant guilty, and assessing his punishment at a fine of one hundred dollars, upon which judgment was rendered. The defendant’s counsel moved the court to grant him a new trial on the grounds following: “Because, 1st, the verdict of the jury is contrary.to the law and the evidence; 2, because the court erred in its charge to the jury, wherein they were told that any indecent familiarity with the person of a female, or defendant Mary Sorrells, she experienced feelings of constraint, a sense of shame, or any other disagreeable emotion of the mind whatever, then he would be guilty under the law of an aggravated assault and battery, and you should so say by your verdict; 3, because the court erred in permitting the counsel for the State, to wit, A. W. Nowlin, a private prosecutor, and the county attorney, to go outside of the record and discuss the private character of defendant; that the court, over the objection of defendant, allowed counsel for the State in the conclusion to discuss defendant’s church relations, to wit, that he was a minister of the gospel, and that the prosecuting witness, Mary Sorrells, was a sister in his church; to discuss, without proof, that one of defendant’s counsel was a green-backer and a candidate for congress on that ticket, when there was no proof before the jury of any of these facts, and the court refused then and there to permit counsel for defendant to reply to these arguments made outside the record; and, 4, because the court erred in overruling defendant’s application for a continuance or postponement of this case.” In an amended motion, made by leave of the court, an affidavit of the witness Virginia Vessels, on account of whose absence a continuance was asked in the first instance, is appended to and made part of the motion for a new trial. This motion was overruled and a new trial refused.
Bills of exception were reserved, 1, to the overruling of the application for a continuance; 2, to the charge of the court as set out hi the motion for a new trial; and, 3, [14]*14to the refusal of the court to grant a new trial. The errors assigned are substantially the same as those mentioned in the several bills of exception, and may be conveniently considered as presented in the bills of exception, in connection with the several grounds set out in the motion for a new trial.
• Whether the first ground of the motion for a new trial is tenable or not depends upon whether there is any error specified in any of the other grounds set out in the motion, save the question of the sufficiency of the evidence to support the verdict. With reference to the second ground of the motion, embraced in the second bill of exceptions, it may not be amiss to state that the charge of the court is not correctly stated in the motion for a new trial. The charge excepted to, as set out in the motion for a new trial, omits to state that the improper liberties taken with the injured female were against her will and consent; which, if true in fact, would amount to this, that any indecent familiarity with the person of a female which produced a sense of shame or other disagreeable emotion of the mind would constitute an aggravated assault and battery; whereas the law only makes these causes actionable in this character of cases when the violent or indecent familiarity with the person of a female is against her will. Pefferling v. State, 40 Texas, 486; Curry v. State, 4 Texas Ct. App. 574; Ridout v. State, 6 Texas Ct. App. 249; Veal v. State, 8 Texas Ct. App. 474; Clark’s Crim. L. note 73, § 5, pp. 164-5.
By comparing the charge as given by the court with that complained of in the motion for a new trial, it will be apparent, not only that the latter is stated inaccurately, but also that the charge as given contained in fact what it would have been a material defect to omit. The charge given is to the effect that if the jury “find and believe from the evidence before you that the defendant used any indecent familiarity with the person of Mary Sorrells, without her consent, and by means of said indecent familiar[15]*15ity she experienced feelings of constraint, a sense of shame,” etc., he would he guilty. The injury done must be intentionally inflicted; but when injury is inflicted by violence, the law presumes the intent, and it rests with the person who inflicted the injury to show the innocence of the intention; and the injury intended may be either bodily pain, constraint, a sense of shame or other disagreeable emotion of the mind. Penal Code, art. 485. We are of opinion that the charge of the court was sufficiently explicit under the proofs adduced to inform the jury that if these indecent familiarities, embracing the language and conduct of the defendant, and the taking hold of the person of the female, were against her will and consent, and the jury so believed, then these acts thus done would constitute an aggravated assault and battery. The act of violence seems to have been proved, and the law, as before stated, presumes that the intent was to injure, and there seems not to have been any attempt on the part of the defendant to show any other intention on his part than to have carnal knowledge of her person, and in his efforts to attain that object his language and conduct were of a character well calculated to inspire any virtuous female with disagreeable emotions of the mind.
The third ground of the motion for a new trial, based on the idea that the State’s counsel, in the conclusion, was permitted to travel out of the record and discuss matters not in evidence, and that counsel for the defendant was not allowed to reply thereto, is not so presented by the record before us that we can determine understandingly whether the matter complained of was of a character calculated to injure the rights of the defendant and militate against a fair trial, or not. It may have been in response to some position previously taken by the defendant’s counsel, or a mere harmless pleasantry, for aught that appears from the record before us. If injury resulted to the defendant by the course pursued by counsel representing the prosecution, or in the court’s refusing [16]*16to allow a reply thereto, this should have been presented by bill of exceptions or in some other tangible form, so as to enable this court to inquire into it understandingly.
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Winkler, J.
The indictment charges -that on October 24, 1879, in Dallas county, the accused “did unlawfully make an aggravated assault and battery upon the person of one Mary Sorrells, and did then and there assault, strike, restrain, illtreat, ill-use, and in violence lay his hands upon her the said Mary Sorrells, she the said Mary Sorrells being then and there a female person, and he the said Atkins being then and there an adult male person, contrary,” etc.
The case being transferred from the District Court, where the indictment was found, to the County Court, for trial, the accused applied for a continuance, alleging that he could not go to trial for the want of the testimony of one Mrs. Virginia Vessels. The application for a continuance was overruled, and the defendant took his bill of exceptions to the ruling of the court. The defendant was tried and convicted, a jury having returned a verdict [13]*13finding the defendant guilty, and assessing his punishment at a fine of one hundred dollars, upon which judgment was rendered. The defendant’s counsel moved the court to grant him a new trial on the grounds following: “Because, 1st, the verdict of the jury is contrary.to the law and the evidence; 2, because the court erred in its charge to the jury, wherein they were told that any indecent familiarity with the person of a female, or defendant Mary Sorrells, she experienced feelings of constraint, a sense of shame, or any other disagreeable emotion of the mind whatever, then he would be guilty under the law of an aggravated assault and battery, and you should so say by your verdict; 3, because the court erred in permitting the counsel for the State, to wit, A. W. Nowlin, a private prosecutor, and the county attorney, to go outside of the record and discuss the private character of defendant; that the court, over the objection of defendant, allowed counsel for the State in the conclusion to discuss defendant’s church relations, to wit, that he was a minister of the gospel, and that the prosecuting witness, Mary Sorrells, was a sister in his church; to discuss, without proof, that one of defendant’s counsel was a green-backer and a candidate for congress on that ticket, when there was no proof before the jury of any of these facts, and the court refused then and there to permit counsel for defendant to reply to these arguments made outside the record; and, 4, because the court erred in overruling defendant’s application for a continuance or postponement of this case.” In an amended motion, made by leave of the court, an affidavit of the witness Virginia Vessels, on account of whose absence a continuance was asked in the first instance, is appended to and made part of the motion for a new trial. This motion was overruled and a new trial refused.
Bills of exception were reserved, 1, to the overruling of the application for a continuance; 2, to the charge of the court as set out hi the motion for a new trial; and, 3, [14]*14to the refusal of the court to grant a new trial. The errors assigned are substantially the same as those mentioned in the several bills of exception, and may be conveniently considered as presented in the bills of exception, in connection with the several grounds set out in the motion for a new trial.
• Whether the first ground of the motion for a new trial is tenable or not depends upon whether there is any error specified in any of the other grounds set out in the motion, save the question of the sufficiency of the evidence to support the verdict. With reference to the second ground of the motion, embraced in the second bill of exceptions, it may not be amiss to state that the charge of the court is not correctly stated in the motion for a new trial. The charge excepted to, as set out in the motion for a new trial, omits to state that the improper liberties taken with the injured female were against her will and consent; which, if true in fact, would amount to this, that any indecent familiarity with the person of a female which produced a sense of shame or other disagreeable emotion of the mind would constitute an aggravated assault and battery; whereas the law only makes these causes actionable in this character of cases when the violent or indecent familiarity with the person of a female is against her will. Pefferling v. State, 40 Texas, 486; Curry v. State, 4 Texas Ct. App. 574; Ridout v. State, 6 Texas Ct. App. 249; Veal v. State, 8 Texas Ct. App. 474; Clark’s Crim. L. note 73, § 5, pp. 164-5.
By comparing the charge as given by the court with that complained of in the motion for a new trial, it will be apparent, not only that the latter is stated inaccurately, but also that the charge as given contained in fact what it would have been a material defect to omit. The charge given is to the effect that if the jury “find and believe from the evidence before you that the defendant used any indecent familiarity with the person of Mary Sorrells, without her consent, and by means of said indecent familiar[15]*15ity she experienced feelings of constraint, a sense of shame,” etc., he would he guilty. The injury done must be intentionally inflicted; but when injury is inflicted by violence, the law presumes the intent, and it rests with the person who inflicted the injury to show the innocence of the intention; and the injury intended may be either bodily pain, constraint, a sense of shame or other disagreeable emotion of the mind. Penal Code, art. 485. We are of opinion that the charge of the court was sufficiently explicit under the proofs adduced to inform the jury that if these indecent familiarities, embracing the language and conduct of the defendant, and the taking hold of the person of the female, were against her will and consent, and the jury so believed, then these acts thus done would constitute an aggravated assault and battery. The act of violence seems to have been proved, and the law, as before stated, presumes that the intent was to injure, and there seems not to have been any attempt on the part of the defendant to show any other intention on his part than to have carnal knowledge of her person, and in his efforts to attain that object his language and conduct were of a character well calculated to inspire any virtuous female with disagreeable emotions of the mind.
The third ground of the motion for a new trial, based on the idea that the State’s counsel, in the conclusion, was permitted to travel out of the record and discuss matters not in evidence, and that counsel for the defendant was not allowed to reply thereto, is not so presented by the record before us that we can determine understandingly whether the matter complained of was of a character calculated to injure the rights of the defendant and militate against a fair trial, or not. It may have been in response to some position previously taken by the defendant’s counsel, or a mere harmless pleasantry, for aught that appears from the record before us. If injury resulted to the defendant by the course pursued by counsel representing the prosecution, or in the court’s refusing [16]*16to allow a reply thereto, this should have been presented by bill of exceptions or in some other tangible form, so as to enable this court to inquire into it understandingly. But even if this had been done, and it should have appeared that the subject was trivial, and that the conduct of the proceedings was not beyond what the court might well have permitted in the exercise of a proper judicial discretion, even then this court would not interfere, unless it had been further made to appear that the rights of the defendant to a fair and impartial trial according to the prescribed forms of law had been violated. The trial judges, we must presume, are competent to direct a trial before them, and under the law to control the argument of counsel, and we have never been inclined to revise this kind of action or to revise this character of rulings unless it is made apparent to us that the rules of law have been violated, or that the discretion confided by law td the judges had been abused, and abused to the prejudice of the defendant.
We must be permitted in this connection to remark with reference to the assumption complained of to the effect that the State’s counsel was permitted to discuss the church relations of the parties, that, whilst we are of opinion the argument might well have been omitted, we find that the case is not without evidence tending at least to the effect that the defendant was a minister of the gospel. The prosecuting witness testified that the defendant, when he came after a shirt, which seems to have been on or about the date mentioned in the indictment, “said he was going to preach the next day, which was Sunday, and he wanted the shirt to wear' on the occasion.”
The defendant before the trial applied for a continuance, stating the name and residence of an absent female witness, and what it was expected he would be able to prove by her; and in the motion for a new trial he offered the affidavit of the witness as to what she would testify [17]*17in the case. The diligence employed in order to secure the attendance of the absent witness is set out in the application for a continuance; a subpoena had been issued on August 25, 1880, and served September 2, 1880, and on September 6, 1880, an attachment was issued. The indictment was filed at the December term, 1879, and was transferred to the Oountv Court February 11, 1880. The application for continuance was filed and overruled on September 9, 1880, three days after the issuance of attachment for the witness. The object of the testimony of the absent witness seems to have been a preparation to impeach the testimony of the prosecuting witness. The application for a continuance states that an attachment had issued for the absent witness, which had not been served. It is not stated that any effort was made to serve the attachment., nor even that it was placed in the hands of an officer for service. This is not such diligence as the law demands. It is not sufficient to state merely that the process was sued out; but it must be shown what was done with it. See cases cited in note 186 to page 471, art. 1386, Clark’s Grim. Law. The court did not err in overruling the application for a continuance. A postponement for the time was not asked for; on the contrary, the application states that “there is no reasonable expectation that the attendance of the witness can be secured to the present term of the court by a postponement of the case to a future day of the term.”
It seems that counsel for the defendant, by embracing in the motion for a new trial the overruling of the application for a continuance and then appending the affidavit of the witness, took the view that the court should have granted a new trial under the proviso to art. 518, Code Crim. Proc., clause 6, to this effect: “Provided, that, should an application for a continuance be overruled and the defendant convicted, if it appear upon the trial that the evidence of the witness or witnesses was of a mate[18]*18rial character, and that the facts set forth in said application were probably true, a new trial should be granted.” To our minds the question here presented is this: should the court have granted a new trial in order to enable the defendant to procure the attendance of a witness solely for the purpose of impeaching the testimony of a witness for the prosecution ?
In the present case it is not pretended that the testimony of the witness was newly discovered; but if such had been the case, even then a new trial should not have been granted solely for the purpose of impeaching a witness. The defendant must have known the general features of the case and what would necessarily be litigated. He must have known the charge against him which would have to be maintained by proof. Williams v. State, 7 Texas Ct. App. 163, and cases collated in § 6, note 230, Clark’s Crim. L. p. 571.
Did the evidence support a verdict of guilty ? It is true there are some peculiar features in the testimony of the prosecuting witness. She was evidently subjected to a very rigid cross-examination. Still her testimony did not stand alone entirely; and however this may be, while she appears to have been a woman occupying an humble sphere in society, still the jury gave credence to her statements, and mainly upon them found the defendant guilty, and the court below must necessarily have believed that her statements were true, else he would have set the verdict aside and granted the defendant a new trial. In our opinion there is sufficient testimony to support the finding of the jury. After a careful examination of the whole case, we find no such error committed on the trial below as would warrant a reversal of the judgment, and it is affirmed.
Affirmed.
Hurt, J., did not sit in this case.