Evans v. State , 25 Tex. 303 ( 1860 )

Roberts, J.

—The objection made to the indictment is, that it does not allege that the violence was inflicted “with intent to injure” the person assaulted, or some other person. That is an element which always enters into this offense. Our Penal Code simply follows the common law upon this subject. (Penal Code, Art. 475.) It also adopts the presumption of the common law, which is, that “ when an injury is caused by violence to the person, the intent to injure is presumed, and it rests with the person inflicting the injury to 'show the accident or innocent .intention.” (Penal Code, Art. 476.)

“It is not necessary to state in an indictment anything which it is not necessary to prove.” (Code Crim. Pro., Art. 896.)

Ko reason is perceived why an indictment for this offense, in the forms adopted and sanctioned by the common law, is not sufficient.

This indictment plainly alleges an assault and battery, substantially in accordance with the recognized precedents, and it was error to sustain the exceptions to it.

Judgment reversed, and case

Remanded.