
    MAXWELL v. STATE.
    (Court of Criminal Appeals of Texas.
    April 10, 1912.)
    Assault and Battery (§ 92*) — Aggravated Assault — Evidence—Suppicienoy.
    Where the evidence did not disclose that prosecutor was struck with wire pliers, as charged in the information, and there was no evidence as to whether the weapon used was of a deadly character, a conviction of aggravated assault was unauthorized.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 137-139; Dec. Dig. § 92.*)
    Appeal from Tarrant County Court; R. E. Bratton, Judge.
    L. M. Maxwell was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    Parker & Hurley, of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The aflidavit and information charge that appellant committed an aggravated assault upon E. S. Burns with “wire pliers,” same being “a deadly weapon.” The entire evidence in the record is from the witness Burns. This discloses that the witness was a conductor on the East Front line, part of the Traction Company lines of Ft. Worth, and he ordered the defendant from the car, because he was using bad language on the car, and that he would have to cut that out. Appellant said, if the witness would stop the ear, he would get off. This was done. About an hour later they met at the end of the line, near the car barns, and as Burns stepped off the rear of the car he was struck from behind by some one. Further testifying, he said: “I turned around and saw the defendant. We then clinched. I think I was assaulted with a pair of ‘connecters,’ hut do not remember seeing any ‘wire pliers’ in the possession of the defendant. I do remember seeing wire pliers taken off of one of the defendants, L. M. Maxwell, T. C. Maxwell, ■or H. P. Coke, after their arrest. I will not ■swear that I was struck with wire pliers at all; will not swear that I was struck with any kind of metal. It might have been a baseball bat, or something like that. I don’t know the length,' breadth, or character of weapon that I was hit with, nor what material it was made of. After we clinched, I drew my pistol, and it was taken away from me by some one. Defendant’s brother ■attacked me from behind, while I was fighting with defendant. I always carry a pistol on my person while I am at work on the street ear. I did not begin the difficulty by drawing the pistol on defendant. I had several severe scalp wounds in my head, and felt the blood running down from behind.”

This is the entire evidence in the record. The evidence does not show that Burns was struck with wire pliers, as charged in the complaint and information, and there is no evidence in the record with reference to whether the weapon was of a deadly character or not. On this question the evidence is absolutely silent. In this condition of the evidence, the conviction was not authorized.

Therefore the judgment is reversed, and the cause remanded.  