DAVIDSOH, Judge.
—The information contains two counts. Only the second count was submitted to, the jury, which charged an aggravated assault upon J. B. Woody on the part of defendant by striking Woody with his fist and knocking him down, which caused his head and skull to come in contact with the pavement of the street and sidewalk where the assault occurred, thereby causing to be inflicted serious bodily injury on Woody.
Without going into a detailed statement, the facts, in substance, disclose that Woody was the owner of a gin. Appellant had been running
the gin, taking part of the profits for his pay. Woody had been collecting tolls due the gin without accounting for any of it to appellant, which caused Woody to be indebted to him for a considerable amount. There is some evidence of ill-will between the parties, and the State introduced threats on the part of appellant to whip or inflict injury upon Woody. There is evidence going to show that Woody was a contentious man and evaded paying his debts. The immediate facts show, substantially, that Woody was on the street in the city of Waco, with his foot on the fender of an automobile talking to the occupant of the automobile when appellant passed along the sidewalk. Seeing Woody, he said to him, that as soon as he finished his conversation he desired to see him. Woody turned and went to appellant. They shook hands, and appellant handed him a letter and asked him wh'at he meant by writing it. Woody said he knew nothing about it. Appellant said you surely do, whereupon Woody says, “You are a God damned liar,” whereupon appellant with his fist struck him on the right cheek or jaw, from which Woody fell. In falling Woody’s head struck the auto, causing him to roll from it. His head struck the curbing. The witnesses widely differ as to the point of contact of Woody’s head in falling, whether it was the auto or the curbing. Appellant went to the city court and offered to make bond. That court declined to take his bond or to receive a fine. Appellant was arrested and charged with aggravated assault. He testifies that he struck Woody upon being called a God damned liar but with no purpose or intent to really injure him. The physicians show that there was on the left side of his head behind his ear a fracture of the skull something like an inch or an inch and a half in length which produced unconsciousness, and that he was in this condition for some time. The)'- also state that the blow produced insanity. In this connection it is indicated that the insanity was produced from a growth on the inside of the skull at the point of fracture.
Appellant contends under this state of case he was and. is not guilty of aggravated assault. Aggravated and simple assault were both submitted to the jury. We are of the opinion the facts do not constitute aggravated assault. The trouble was a sudden one; ill-feeling between the parties; one blow struck with the fist, and the witnesses indicate that it was .not a severe blow, but that it did knock him down. Wherever a party inflicts intentional injury the intent to injure is presumed, and it rests with the party inflicting the injury to show the innocent intent or want of purpose to inflict the injury. In this case there could be no question of appellant’s intent to strike with his fist, for he did it intentionally on account of-having been called a God damned liar. The result of that was to knock Woody down. The fact that his head struck the auto or curb was evidently not in'contemplation. If the injury be considered serious, within contemplation of the statute, then the proposition confronts us whether it was a natural and probable result of a blow. That appellant intended to strike with his list is evident. Whatever was the natural or intended result of that blow would be imputed to appellant. If he did not purpose or have in mind
the idea of knocking him against the curb or the auto or both, then he should not he held responsible for that result. That he did not so intend is clear, and it is equally clear that it was an accident not contemplated at the time by appellant." He says he had no intention to injure or to hurt him, but was resenting the language used by Woody. The striking of the auto or the curbing, either or both, was the result, it is true, of the fall, hut it was accidental and evidently not in contemplation. It would be straining the facts beyond any legitimate conclusion to hold that appellant contemplated that he would strike either the auto or the curbing, or that he even would fall, as the witnesses testified the blow was light. The meeting seems to have been purely accidental, and the fight came up in the manner stated. The result was not necessary or intended result but an accident. Under this condition of the evidence we are of the opinion that aggravated assault was not in the case.
There are other errors in the record that should not have occurred. Some of these are pointed out by bills of exception, but in such an indefinite way as hardly to he considered. One of the hills recites that Gardner was permitted to testify that the firm of Woody & Calvert owed the Industrial Cotton Oil Company approximately $265; that such proof was made by introducing a ledger in which the witness testified he did not make all the entries in relation to the accounts of Woody
&
Calvert, and which he, witness, testified was not the book of original entry, hut was the book of third entry; that is, the original entries were made on vouchers, thence transferred to a cash book and then into the ledger. All this was objected to, but no grounds of objection stated. The court approved this bill by stating that Gardner was bookkeeper for the Industrial Cotton Oil Company, and that it was his duty to keep the ledger introduced in evidence; that the vouchers on which the original entries were made were very voluminous, covering one whole, side of the office in which they were kept, and that the vouchers representing the items introduced from the ledger were scattered indiscriminately through this large volume; that the vouchers were entered into the cash book in the order they were issued regardless as to whose account they were later to be transferred and the ledger was the first hook of the complete system in which the items were placed in individual accounts. What the accounts, ledger and books of the Industrial Cotton Oil Company had to do with this transaction is not made to appear. We are of opinion upon another trial these independent matters between third ■ parties should not be introduced. If the contention was that Woody & Calvert had been partners in the gin business, then the entry on the ledger of the Industrial Cotton Oil Company would not be proof of that fact or any evidence of it, unless it was in some way shown that this was called to the attention of appellant so as to show that he was being treated hv this oil company as a partner in the transaction, provided that was an issue in the case.
There is some complaint also of the county attorney’s argument. We
are of the opinion that the county attorney went a little too far, and upon another trial he should be a little more circumspect.
There is also a clause in the charge to which we call attention, though not so presented here as to require a reversal, this being a misdemeanor. The court charged \?ith reference to the use of excessive force. That was not and could not be an issue in this case.
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DAVIDSOH, Judge.
—The information contains two counts. Only the second count was submitted to, the jury, which charged an aggravated assault upon J. B. Woody on the part of defendant by striking Woody with his fist and knocking him down, which caused his head and skull to come in contact with the pavement of the street and sidewalk where the assault occurred, thereby causing to be inflicted serious bodily injury on Woody.
Without going into a detailed statement, the facts, in substance, disclose that Woody was the owner of a gin. Appellant had been running
the gin, taking part of the profits for his pay. Woody had been collecting tolls due the gin without accounting for any of it to appellant, which caused Woody to be indebted to him for a considerable amount. There is some evidence of ill-will between the parties, and the State introduced threats on the part of appellant to whip or inflict injury upon Woody. There is evidence going to show that Woody was a contentious man and evaded paying his debts. The immediate facts show, substantially, that Woody was on the street in the city of Waco, with his foot on the fender of an automobile talking to the occupant of the automobile when appellant passed along the sidewalk. Seeing Woody, he said to him, that as soon as he finished his conversation he desired to see him. Woody turned and went to appellant. They shook hands, and appellant handed him a letter and asked him wh'at he meant by writing it. Woody said he knew nothing about it. Appellant said you surely do, whereupon Woody says, “You are a God damned liar,” whereupon appellant with his fist struck him on the right cheek or jaw, from which Woody fell. In falling Woody’s head struck the auto, causing him to roll from it. His head struck the curbing. The witnesses widely differ as to the point of contact of Woody’s head in falling, whether it was the auto or the curbing. Appellant went to the city court and offered to make bond. That court declined to take his bond or to receive a fine. Appellant was arrested and charged with aggravated assault. He testifies that he struck Woody upon being called a God damned liar but with no purpose or intent to really injure him. The physicians show that there was on the left side of his head behind his ear a fracture of the skull something like an inch or an inch and a half in length which produced unconsciousness, and that he was in this condition for some time. The)'- also state that the blow produced insanity. In this connection it is indicated that the insanity was produced from a growth on the inside of the skull at the point of fracture.
Appellant contends under this state of case he was and. is not guilty of aggravated assault. Aggravated and simple assault were both submitted to the jury. We are of the opinion the facts do not constitute aggravated assault. The trouble was a sudden one; ill-feeling between the parties; one blow struck with the fist, and the witnesses indicate that it was .not a severe blow, but that it did knock him down. Wherever a party inflicts intentional injury the intent to injure is presumed, and it rests with the party inflicting the injury to show the innocent intent or want of purpose to inflict the injury. In this case there could be no question of appellant’s intent to strike with his fist, for he did it intentionally on account of-having been called a God damned liar. The result of that was to knock Woody down. The fact that his head struck the auto or curb was evidently not in'contemplation. If the injury be considered serious, within contemplation of the statute, then the proposition confronts us whether it was a natural and probable result of a blow. That appellant intended to strike with his list is evident. Whatever was the natural or intended result of that blow would be imputed to appellant. If he did not purpose or have in mind
the idea of knocking him against the curb or the auto or both, then he should not he held responsible for that result. That he did not so intend is clear, and it is equally clear that it was an accident not contemplated at the time by appellant." He says he had no intention to injure or to hurt him, but was resenting the language used by Woody. The striking of the auto or the curbing, either or both, was the result, it is true, of the fall, hut it was accidental and evidently not in contemplation. It would be straining the facts beyond any legitimate conclusion to hold that appellant contemplated that he would strike either the auto or the curbing, or that he even would fall, as the witnesses testified the blow was light. The meeting seems to have been purely accidental, and the fight came up in the manner stated. The result was not necessary or intended result but an accident. Under this condition of the evidence we are of the opinion that aggravated assault was not in the case.
There are other errors in the record that should not have occurred. Some of these are pointed out by bills of exception, but in such an indefinite way as hardly to he considered. One of the hills recites that Gardner was permitted to testify that the firm of Woody & Calvert owed the Industrial Cotton Oil Company approximately $265; that such proof was made by introducing a ledger in which the witness testified he did not make all the entries in relation to the accounts of Woody
&
Calvert, and which he, witness, testified was not the book of original entry, hut was the book of third entry; that is, the original entries were made on vouchers, thence transferred to a cash book and then into the ledger. All this was objected to, but no grounds of objection stated. The court approved this bill by stating that Gardner was bookkeeper for the Industrial Cotton Oil Company, and that it was his duty to keep the ledger introduced in evidence; that the vouchers on which the original entries were made were very voluminous, covering one whole, side of the office in which they were kept, and that the vouchers representing the items introduced from the ledger were scattered indiscriminately through this large volume; that the vouchers were entered into the cash book in the order they were issued regardless as to whose account they were later to be transferred and the ledger was the first hook of the complete system in which the items were placed in individual accounts. What the accounts, ledger and books of the Industrial Cotton Oil Company had to do with this transaction is not made to appear. We are of opinion upon another trial these independent matters between third ■ parties should not be introduced. If the contention was that Woody & Calvert had been partners in the gin business, then the entry on the ledger of the Industrial Cotton Oil Company would not be proof of that fact or any evidence of it, unless it was in some way shown that this was called to the attention of appellant so as to show that he was being treated hv this oil company as a partner in the transaction, provided that was an issue in the case.
There is some complaint also of the county attorney’s argument. We
are of the opinion that the county attorney went a little too far, and upon another trial he should be a little more circumspect.
There is also a clause in the charge to which we call attention, though not so presented here as to require a reversal, this being a misdemeanor. The court charged \?ith reference to the use of excessive force. That was not and could not be an issue in this case. The State’s theory was that appellant struck with his fist, knocking Woody down and incidentally his head struck against the auto or curbing. Appellant’s theory was when Woody called him a God damned liar he raised a loaded walking stick, which witnesses all say he was carrying, and threatened to strike him with it, and that he struck with his fist in self-defense. There is nothing in this case which calls for the doctrine of excessive force.
There is also a matter called to our attention by the Assistant Attorney General in regard to the condition of this record. None of the papers show to have been filed. The evidence and all the evidence shown by the record of their filing is that on the margin of the transcript it is noted 7-10-14 by way of illustration. We suppose that this was intended to show that that document was filed on 10th of July, 1914. In regard to the statement of facts we find this 9-4-14, which presumably was intended for the 4th day of September, 1914, but nowhere in the record does the clerk place his file mark upon the papers or show that they were ever filed outside of the above statement. This occurs with reference to various other papers in the transcript. We hope this matter will not occur again and that the clerks or their deputies will take time to properly file papers and make the transcript show the proper filing. The file mark is often very important in this court to know whether the law has been complied with in filing papers within the time allowed by law so as to be considered on appeal. We hope not to be called on to mention such matters as these, and the clerks will be more careful, following the rules and practice in regard to such matters.
The judgment is reversed and the cause is remanded.
Reversed and remanded.