
    Eaton v. State.
    (Division B.
    Oct. 2, 1939.)
    [191 So. 93.
    No. 33685.]
    
      R. L. Calhoun, of Collins, and D. A. McLeod, of Mt. Olive, for appellant.
    
      W. D. Conn, Jr., Assistant Attorney-General, for the State.
   Ethridge, P. J.,

delivered the opinion of the court.

Appellant, Allen Eaton, was convicted of an assault on a charge of an assault and battery with the intent to kill and murder one Dan Carter. Prior to the time of the offense, Eaton, a man about fifty years of age, eloped with and married the sixteen year old daughter of Dan Carter, the party alleged to be assaulted. Afterwards Dan Carter and his wife caused their daughter to return to their home, and mutual prosecutions were instituted between the appellant and Dan Carter, but these seem to have been adjusted. On and about the 3rd day of February, 1938, the appellant went to where Dan Carter was working on a W. P. A. road project, Carter being engaged in using an axe to trim off limbs of trees, when the appellant, accompanied by his son, a minor, drove up near where Carter and others were working and called to Carter to come to the car. According to State witnesses, Carter started toward the car carrying his axe along with him. As he approached the car, appellant told him to drop his axe, but Carter failed to do so, when the appellant raised a pistol and again told Carter to drop the axe, aiming the pistol at Carter, whereupon Carter dropped the axe and the appellant replaced the pistol either on his person or on the seat of the car. It does not appear from the evidence anywhere that Carter was making any demonstration with the axe or making any threats, but was merely approaching Eaton with his axe in his hand, in answer to Eaton’s call to come there.

The trial court granted a peremptory instruction as to the felonious attempt to kill and murder, and submitted the question to the jury as to a simple assault, and the jury found the appellant guilty of assault, whereupon the circuit judge sentenced the appellant to six months in jail and a fine of $500' and suspended four months of the jail sentence, and $300 of the fine during good behavior.

It does not appear, therefore, that the pistol was aimed in self defense, or that Eaton was in any danger at the time he drew the pistol, all the evidence showing that Carter was not within striking distance or near enough to Eaton to do any harm with the axe at the time the pistol was drawn, nor was there anything in the evidence upon which the jury could rightfully infer that Carter intended to do any physical injury to the appellant.

The evidence was therefore sufficient to warrant the jury in finding the defendant guilty and the judgment will be affirmed.

Affirmed.  