
    R. K. Smith v. The State.
    1—To sustain a charge of an assault with intent to kill and murder, or an aggravated assault, or even a simple assault, the evidence must show that the accused had the ability to commit a battery. A mere attempt to commit a battery, not coupled with the ability, will not suffice, no matter how threatening the gestures or furious the words which manifest the purpose.
    Appeal from Galveston. Tried below before the Hon. W. R. Fayle.
    The appellant was indicted for an assault with intent to kill and murder B. Rush Plumly. He was found guilty of an assault only, and adjudged to pay a fine of $100; whereupon, being refused a new trial, he appealed.
    The details of the difficulty might prove interesting if not edifying, but are not deemed necessary to elucidate the opinion.
    
      R. K. Smith, in propria persona.
    
    No brief for the State.
   Lindsay, J.

The evidence in this case does not sustain the charge of an assault with intent to kill and minder. Heither does' it establish that there was either an aggravated or a simple assault committed. From the proof exhibited in the record, it is apparent, that whatever may have been the intention of the appellant, as manifested by threatening gestures and accompanying words, that intention was not coupled with the ability to commit a battery. Without this ability, coupled with the attempt, there could be no assault.

The judgment is reversed and the case dismissed.

Reversed and dismissed.  