§ 420. Assaults by or upon particular persons. Under some statutes an assault or battery becomes aggravated when committed upon a public officer in the discharge of his legal duties,96 or in resisting the execution of any legal process,97 or when committed by an adult male upon a person of a female,98 or by an adult male or female upon the person of a child,99 or by a person of robust health or strength upon one who is aged or decrepit.1 96 Com. v. Delehan, 148 Mass. 254, 19 N. E. 221; Com. v. Kirby, 2 Cush. (Mass.) 577; Dilliard v. State, 62 Tex. Cr. 321, 137 S. W. 356; Sanner v. State, 2 Tex. App. 458. To sustain a conviction under the Texas statute it must be established that the assaulted person was an officer in the discharge of his duties, and that the assault was made as an interruption of his official duties. Curlin v. State, 84 Tex. Cr. 602, 209 S. W. 666; Jeanes v. State, 60 Tex. Cr. 440, 132 S. W. 352. A conviction cannot be had where the alleged assault was made to prevent an illegal arrest. Nickerson v. State, 69 Tex. Cr. 659, 154 S. W. 992. The statute applies to assaults upon officers de facto as well as officers de jure. Brown v. State, 43 Tex. Cr. 411, 66 S. W. 547, S. C., 42 Tex. Cr. 417, 60 S. W. 548, 96 Am. St. Rep. 806. But not where the person assaulted is not even a de facto officer, though assuming to act as an officer. Brown v. State, 43 Tex. Cr. 411, 66 S. W. 547. The defendant must have known or must have been informed that the person assaulted was an officer. Baker v. State, 53 Tex. Cr. 14, 108 S. W. 665. And the indictment must so allege. State v. Coffey, 41 Tex. 46; Johnson v. State, 26 Tex. 117; Bristow v. State, 36 Tex. Cr. 379, 37 S. W. 326. 97 See Feaster v. State, 15 Okla. Cr. 366, 177 Pac. 124. 98 Nobles v. State, 83 Tex. Cr. 46, 200 S. W. 1090; Oliver v. State, 60 Tex. Cr. 62, 131 S. W. 215; Johnson v. State, 59 Tex. Cr. 263, 128 S. W. 614; Rogers v. State, 40 Tex. Cr. 355, 50 S. W. 338; Slawson v. State, 39 Tex. Cr. 176, 45 S. W. 575, 73 Am. St. Rep. 914; Davis v. State, 6 Tex. App. 133. An adult within the meaning of the Texas statute is a person who has attained the full age of twenty-one years. Hall v. State, 16 Tex. App. 6, 49 Am. Rep. 824; George v. State, 11 Tex. App. 95. It is not necessary that the assaulted female be an adult. Hopson v. State, 84 Tex. Cr. 619, 209 S. W. 410. 99 Stanfield v. State, 43 Tex. 167; Harris v. State, 83 Tex. Cr. 468, 203 S. W. 1089; Ely v. State, 68 Tex. Cr. 562, 152 S. W. 631. The word "child," as used in the Texas statute, includes only boys under the age of fourteen and girls under the age of twelve. Wilman v. State, 63 Tex. Cr. 623, 141 S. W. 110; Bell v. State, 18 Tex. App. 53, 51 Am. Rep. 293; Allen v. State, 7 Tex. App. 298; McGregor v. State, 4 Tex. App. 599. 1 Hahn v. State, 87 Tex. Cr. 22, 218 S. W. 1058. Aged means that the party has reached that degree of weakness which characterizes declining years. Little v. State, 61 Tex. Cr. 197, 135 S. W. 119; Black v. State (Tex. Cr.), 67 S. W. 113. "A decrepit person * is 3 § 421. Assaults in particular places. Under some statutes an assault or battery becomes aggravated when committed in a court of justice, or in any place of religious worship, or when the person committing the offense goes into the house of a private family and is there guilty of an assault and battery.4 § 422. Other aggravated assaults. Under some statutes an assault becomes an aggravated one or is punishable as a distinct offense when the instrument or means used is such as inflicts disgrace upon the person assaulted, such as an assault and battery with a whip or cowhide; or when a person assaults and beats another with a cowhide, stick or whip, while having in his possession a deadly weapon, with intent to intimidate and prevent the person assaulted from defending 5 one who is disabled, incapable or incompetent, from either physical or mental weakness or defects, whether produced by age or other causes, to such an extent as to render the individual comparatively helpless in a personal encounter with one possessed of ordinary health and strength." Hall v. State, 16 Tex. App. 6, 49 Am. Rep. 824; Little v. State, 61 Tex. Cr. 197, 135 S. W. 119. Proof that the defendant weighed 180 pounds and that the assaulted party weighed 140 pounds and had been afflicted with tuberculosis for some time, does not sustain an allegation that the latter was decrepit. Whitener v. State, 83 Tex. Cr. 281, 203 S. W. 48. 2 State v. Hunter, 44 Tex. 94; State v. Murrah, 25 Tex. 758; Blackwell v. State, 30 Tex. App. 416, 17 S. W. 1061; Milstead v. State, 19 Tex. App. 490. 3 Pollock v. State, 60 Tex. Cr. 265, 131 S. W. 1094; Blackwell v. State, 30 Tex. App. 416, 17 S. W. 1061. 4 State v. Cass, 41 Tex. 552; Ward v. State, 68 Tex. Cr. 154, 151 S. W. 1073. To come within the Texas statute the assault and battery must be committed in the house, and there must be a battery in the house as well as an assault. Pederson v. State, 21 Tex. App. 485, 1 S. W. 521. It does not apply to an assault committed by a member of the family who resides in the house. Hall v. State, 16 Tex. App. 6, 49 Am. Rep. 824. 5 Hahn v. State, 87 Tex. Cr. 22, 218 S. W. 1058. The provision of the Texas statute to this effect is not limited to assaults made with a whip or COWhide, but includes assaults made by any means having a natural tendency to disgrace the assaulted party. Slawson v. State, 39 Tex. Cr. 176, 45 S. W. 575, 73 Am. St. Rep. 914. It covers an assault with a whip. Yates v. State, 72 Tex. Cr. 279, 162 S. W. 499. And also a whipping with an instrument with which a whipping could be administered, such as switches. Caples v. State, 69 Tex. Cr. 394, 155 S. W. 267. It also covers the taking of indecent liberties by a male with the person of a female against her will and consent. Slawson v. State, 39 Tex. Cr. 176, 45 S. W. 575, 73 Am. St. Rep. 914. Or with the person of a female 6 himself; or when a serious bodily injury is inflicted upon the person assaulted; or where one wilfully or wrongfully wounds, or inflicts grievous bodily harm upon another, either with or without a weapon; child under the age of consent. Cirul v. State, 83 Tex. Cr. 8, 200 S. W. 1088. And a male under twenty-one who is guilty of violent and indecent familiarity with the person of a female, against her will, and with intent to have sexual intercourse with her, may be convicted under it. George v. State, 11 Tex. App. 95. 6 Higginbotham v. State, 50 Ala. 133. To come within such a provision the defendant must be armed with a deadly weapon, with the intent and for the purpose of intimidation, to enable him to administer a cowhiding upon the person attacked. State v. Taylor, 50 Ore. 449, 93 Pac. 252. The gist of the offense is not the assault, but the having in possession at the time of the assault a deadly weapon, with intent to intimidate the party assaulted and prevent him from defending himself, and in order to sustain a conviction it must be shown that the defendant had the weapon in his possession for that purpose. Lawson v. State, 52 Miss. 556. If the intent to intimidate exists, the defendant may be convicted although he did not exhibit the weapon to the person assaulted, and the latter did not know that he had it. Lawson v. State, 52 Miss. 556. Whether such intent existed is a question for the jury. Lawson V. State, 52 Miss. 556. Such a provision does not apply to the case of an altercation, or an ordinary assault and battery, even though the assistant is armed with a gun. State v. Taylor, 50 Ore. 449, 93 Pac. 252. That the person assailed is a trespasser or resists the assault can con 8 stitute no defense. This offense can by no possible construction involve the element of self defense by the assailant. State v. Taylor, 50 Ore. 449, 93 Pac. 252. 7 Young v. State, 86 Tex. Cr. 621, 218 S. W. 754; Harper v. State, 84 Tex. Cr. 345, 207 S. W. 96; Royston v. State, 81 Tex. Cr. 514, 196 S. W. 542; Parish v. State, 69 Tex. Cr. 254, 153 S. W. 327; Porter v. State, 60 Tex. Cr. 588, 132 S. W. 935. In the following cases the injury was held to be serious. Branch v. State, 35 Tex. Cr. 304, 33 S. W. 356; Wimberley v. State, 60 Tex. Cr. 65, 130 S. W. 1002 (throat cut); Knight v. State, 87 Tex. Cr. 134, 220 S. W. 333 (wounds on head); Fulkerson v. State, 57 Tex. Cr. 80, 121 S. W. 1111 (wounds on head); Robey v. State, 73 Tex. Cr. 9, 163 S. W. 713 (dislocation of shoulder). 8 Under some statutes this is an assault in the second degree. State v. Brinkman, 145 Minn. 18, 175 N. W. 1006; State v. Gaularpp, 144 Minn. 86, 174 N. W. 445; State v. Damuth, 135 Minn. 76, 160 N. W. 196; State v. Broadbent, 19 Mont. 467, 48 Pac. 775; People v. Fein, 162 N. Y. App. Div. 765, 147 N. Y. Supp. 966. Grievous bodily harm may result from an assault with the fists. State v. Damuth, 135 Minn. 76, 160 N. W. 196. But there cannot be a conviction under such a provision on account of a blow with the hand which does not inflict a wound or serious bodily harm on the person assaulted. People v. Fein, 162 N. Y. App. Div. 765, 147 N. Y. Supp. 966. What is a grievous or serious bodily harm is ordinarily a jury question, to be determined in view of the or where the driver of a motor vehicle wilfully or with gross negligence collides with or causes injury to another person on the highway, or when committed with intent to spoil the clothes of the person assaulted.10 § 423. Ability to commit intended crime-In general. Of course actual present ability to inflict the intended injury is essential to constitute an aggravated assault in those jurisdictions where it is an essential element of a simple assault.11 So one who points an unloaded gun at another cannot be convicted of an assault with intent to kill in those jurisdictions where the pointing of an unloaded gun does not constitute even a simple assault.12 Without regard to the question of present ability it has been held that one cannot commit an assault with intent to kill or to do great bodily harm by drawing or pointing a gun which he knows is not loaded,18 or is not in a condition to be fired, 14 since in such case the necessary specific intent is absent. And the same has been held to be facts surrounding the assault and the consequences thereof on the victim. State v. Gaularpp, 144 Minn. 86, 174 N. W. 445. 9 Tarver v. State, 83 Tex. Cr. 275, 202 S. W. 734; Coffey v. State, 82 Tex. Cr. 481, 200 S. W. 384. 10 An indictment under the statute, 6 Geo. I, c. 23, for a felonious assault with intent to spoil, cut, and deface the garments of the person assaulted is not supported where it appears the intent was to wound the person assaulted. Rex v. Williams, 1 Leach C. C. 529. 11 Howard v. State, 67 Ind. 401; People v. Lilley, 43 Mich. 521, 5 N. W. 982; State v. Marks, 15 Nev. 33; State v. Napper, 6 Nev. 113. One cannot be guilty of an assault with intent to commit rape where he does not get near enough to his intended victim to lay hands on her. Burton v. State, 8 Ala. App. 295, 62 So. 394. As to the necessity for actual ability in simple assaults, see § 404, supra. 12 People v. Grandi, 33 Cal. App. 637, 165 Pac. 1027; Klein v. State, 9 Ind. App. 365, 36 N. E. 763, 53 Am. St. Rep. 354. Where the gun is loaded with pow der and a light cotton wad only. State v. Swails, 8 Ind. 524, 65 Am. Dec. 772. As to simple assaults, see § 404, supra. 18 State v. Mitchell, 139 Iowa 455, 116 N. W. 808; Clark v. State,— Okla. Cr. 106 Pac. 803. The gun must be so loaded as to be capable of doing the mischief intended. Vaughan v. State, 3 Smedes & M. (Miss.) 553. The gun is presumed to be loaded in such case, and the burden is on the defendant to show the contrary, since the knowledge is with him. Clark v. State, Okla. Cr. 106 Pac. 803. 14 As by presenting and snapping a gun where he knows that there is no cap on it. Mullen v. State, 45 Ala. 43, 6 Am. Rep. 691. true where a gun or pistol is fired at another at such a distance that it could not possibly injure him,15 or where the person firing it could not possibly have hit the person claimed to have been assaulted, or seen him to fire at him; 16 or where a person shoots at another with a gun or pistol loaded with powder only, unless he is near enough to inflict an injury with a gun loaded in that manner.17 But one who intends to fire a gun, which he believes is loaded, at the person assaulted may be convicted of an assault with intent to commit great bodily injury, 18 or to murder, 19 although in fact and contrary to his belief it was not loaded. And the same is true where one attempts to shoot another with a loaded gun which, for some reason not due to any act of his, fails to go off when the trigger is pulled.20 And the fact that a pistol presented at another was not cocked does not show an absence of intent to kill, since the person presenting it may have supposed that it was cocked, or may have intended to cock it.21 Accuracy or inaccuracy of aim is of no importance on a prosecution for an assault with a dangerous weapon by shooting at the assaulted party,22 and a person may be convicted of an assault with intent to kill or murder although his gun will not shoot accurately at that distance,23 or is not loaded in such a way as to produce death at that distance,24 or though he misses his intended victim because 15 Vaughan v. State, 3 Smedes & M. (Miss.) 553. And see Allen v. State, 28 Ga. 395, 73 Am. Dec. 760. 16 Lott v. State, 83 Miss. 609, 36 So. 11. 17 There may be a conviction if the gun is loaded with powder and wadding only, if it is fired so near an individual and in such direction that it would probably kill him, but not otherwise. Vaughan V. State, 3 Smedes & M. (Miss.) 553; State v. Sears, 86 Mo. 169; Henry v. State, 18 Ohio 32. To sustain a conviction for shooting with intent to kill it must appear that the gun with which the shot was fired was loaded with powder and ball. Fastbinder v. State, 42 Ohio St. 341. That the gun was loaded with powder and ball cannot be inferred from the fact that it was fired, coupled with previous threats to shoot the 18 State v. Mitchell, 139 Iowa 455, 19 Where he presents and snaps a 20 People v. Ryan, 55 Hun (N. Y.) 21 Huie v. State, 139 Ark. 241, 213 22 A conviction may be had although the bullet did not go in the direction of the assaulted party. State v. Hunt, 25 R. I. 69, 54 Atl. 773. 23 Warford v. People, 43 Colo. 107, 96 Pac. 556. 24 One who fires a gun loaded with number six shot at another at a dis 1 |