Coffey v. State

200 S.W. 384

Opinions

MORROW, J.

This conviction was for aggravated assault. Appellant was tried before the court; without a jury. There are no bills of exception in the record.

There were two counts. The first attempted to charge an aggravated assault upon a female by an adult male. This count was defective in failing to allege the date of the offense within the period of limitation. The second count charged the offense to have been committed by running an automobile into and against another automobile in which the injured party was seated, inflicting upon her serious bodily injury.

[1] It is suggested in the brief and record that this is an attempt to prosecute under section 35 of chapter 207 of the Acts of the Thirty-Fifth Legislature, p. 484, which declares an injury resulting from a collision between motor vehicles on the public highways of the state, brought about by gross negligence, shall be an aggravated assault. TBis position is, we think, not tenable, as the act in question was not approved until April 9, 1917, and did not become effective until July 1,1917, while this prosecution was begun in January, 1917. It is under the general law by which assault becomes aggravated when serious bodily injury is inflicted upon the person assaulted. Article 1022, subd. 7, Branch’s Ann. P. O. p. 931. It is in the class with Perkins v. State, 62 Tex. Or. B. 508, 138 S. W. 133, wherein the offense was committed by running against the injured party with a buggy and horse, inflicting serious bodily injury.

Appellant sought a motion for new trial on the ground that there was no intent to inflict the injury proved. In this character of offense the absence of intent is, generally speaking, defensive (Vernon’s P. 0. art. 1009, p. 564); and, the evidence in this ease-disclosing that appellant inflicted upon the .party named in the iildictment a serious bodily injury, the intent will be presumed in the absence of evidence to the contrary, of which there is none introduced. Thompson v. State, 89 S. W. 1081.

The judgment of the lower court is affirmed.

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