
    Cox v. The State.
    APPEAL from the Clay Common Pleas.
   Elliott, C. J.

Cox, the appellant, was convicted of an assault and battery on the body of Peter Wagner, and fined $50 and costs. The only question in the case is as to the sufficiency of the evidence to' sustain the finding and judgment of the court below. The evidence is made a part of the record by a bill of exceptions. The cause was tried by the court, by agreement of the parties.

Erom the evidence, it appears that Cox kept a grocery, and retailed intoxicating liquors. Wagner went to Cox’s on Sunday, and, after drinking, as he testifies, three glasses of liquor, dunned Cox for money which the latter owed him, but refused to pay. A quarrel ensued, when Cox ordered Wagner to leave his house, which he did, going outside of the inclosure into the public street, and there, probably, bantered Cox to come into the street and fight him. Mrs, Cox, the wife of the defendant, had become excited in the quarrel, by Wagner charging her with dishonesty. She procured an unshaved ax-handle, and followed Wagner, and struck at Mm with it across tho fence. Wagner caught the bludgeon, and wrested it from her. By this time, Cox had also come up, and at once engaged in the light; ho got tho bludgeon from Wagner, and struck him two or three blows with it, the last one of which struck him across the head, from which Wagner fell to the ground senseless. The blow was a very severe one, inflicting serious and probably lasting injury.

Williamson § Daggy, for appellant.

The evidence of Wagner establishes a clear case of an unmitigated assault and battery. Two other witnesses, females, were also present, and saw most of the occurrence. There is some conflict between their statements and those of Wagner, but from their statements, alone, it is evident that the fight and injury to Wagner resulted from his being followed by Cox and his wife, and attacked after he had left Cox’s premises.

The court that tried the case had full opportunity of judging of the facts, and of the credibility of the witnesses, and we see no reason to disturb the finding.

The judgment is affirmed, with costs.  