¶1It is not sufficient in an indictment for an assault and battery to charge that the defendant did use unlawful violence upon the person of another; but the indictment must also charge the intent to injure. The injury and the intent to injure constitute the gravamen of the action, and no conviction for an assault and battery can legally be maintained without an allegation in the indictment, of the injury and intent to injure; and the proof must support the allegation.
¶2It is true that when an in jury is committed, the law will presume the intent, but that does not do away with the necessity of the allegation in the indictment, or the proof of such facts as would raise the presumption of the intent. An assault, as defined by the statute, is an attempt to commit a battery. The whole offense consists in the intent, without which there can be no assault. The intent to commit a battery should be definitely and distinctly alleged in an indictment for an assault, and where this material allegation is wanting, the indictment should be held bad upon exceptions.
¶3Upon this ground we held in Hill v. The State, 34 Texas, 625, that a similar indictment was “ insufficient, because it did “ not charge an assault as defined by the statute.” We are of the opinion that the indictment in this case, for the reasons given, is insufficient to support a judgment of conviction. The judgment of the District Court is therefore reversed, and the case dismissed.
¶4Reversed and dismissed.