Lee v. State , 34 Tex. Crim. 519 ( 1895 )

This is a conviction for aggravated assault with a gun — a deadly weapon.

Do the facts show an assault? is the only question presented for discussion. The court submitted to the jury the following: "The use of any dangerous weapon or the semblance thereof, in an angry or threatening manner, with intent to alarm another, and under circumstances calculated to effect that object, comes within the meaning of an assault." But, in connection with this provision of the statute, the court instructed the jury, that such an assault would be "simple assault." The jury convicted appellant of aggravated assault, thus evidently showing that their verdict was not based upon the statute last mentioned.

Do the facts — those which tend to support the verdict most strongly — constitute an assault as defined by Penal Code, article 484? They do not. What is an assault? "Any attempt to commit a battery." There was no attempt to commit a battery in this case. "Or any threatening gesture showing in itself, or by words accompanying it, an immediate intention to commit a battery." (The ability was there.) There was no gesture alone or accompanied by a word, showing an immediate intention to commit the battery here. There was no assault as defined by article 484, Penal Code. To constitute an assault there must be the commencement of an act which, if not prevented, would produce a battery. Lawson v. The State, 30 Ala. 14. There can be no assault (under this article 484) without a present intention, as well as present ability, of using some weapon against the person of another. The Reporter will give the evidence.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.