¶1A jury was waived by the defendant and the cause submitted upon the facts to the judge, who found the defendant guilty of a simple assault. In our opinion the evidence does not support the finding of the judge. ' On the contrary, the evidence shows that defendant’s horse became unmanageable, not subject to his control, ran away with him, ran against and upset the buggy in which were the ladies and the child, and thus caused the injuries for the infliction of which he has been convicted. To our minds the facts clearly show that the upsetting of the buggy was an act done by accident, and without such a degree of carelessness or negligence on the part of the defendant as rendered it criminal. (Penal Code, art. 44.) There was no intent on his part to injure, and without such an intent there could not be an assault in law. (Penal Code, art. 484.) The evidence repels the presumption of such an intent. (Donaldson v. The State, 10 Texas Ct. App., 307.)
¶2The judgment is reversed and the cause is remanded.
¶3Reversed, and remanded.