
    MYERS v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    1. Assault and Battery (§ 53*) — '“Assault” —Threatening with Dangerous Weapon.
    A person who curses and points a gun at another, who flees, is guilty of an assault in violation of Pen. Code 1911, art. 1013, providing that the use of a dangerous weapon in an angry and threatening manner, with intent to alarm another, and under circumstances calculated to effect that object, is an assault; it not being necessary that an actual injury be inflicted.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 73, 74; Dec. Dig. § 53. For other definitions, see Words and Phrases, vol. 1, pp. 532-538; vol. 8, p. 7582.]
    2. Assault and Battery (§ 56) — “Aggravated Assault” — Threatening with Dangerous Weapon.
    A person who curses and points a gun at another, who flees, the. gun not being fired, is guilty of aggravated assault, within Pen. Code 1911, art. 1022, providing that an assault becomes an aggravated assault when committed with a deadly weapon under circumstances not amounting to an intent to murder.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 80, 81; Dec. Dig. § 56.
    
    For other definitions, see Words and Phrases, vol. 1, pp. 270, 271.]
    Appeal from Wharton County Court; J. R. Bowen, Judge.
    Forest Myers was convicted of aggravated assault, and appeals.
    Affirmed.
    Jno. A. Barclay, of Wharton, and E. R. Pedigo, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of making an aggravated assault on Henry Hopkins. The facts show that Henry Hopkins married a sister of appellant, and the feeling had grown bitter between them over the dividing line of the land of appellant and his sister. Mrs. Hopkins had been prosecuted for making an assault on appellant, and, on the day this offense was alleged to have taken place, all the parties had been to town to see lawyers in regard to their land troubles. Appellant says he did not take his deed with him, and returned home after it, and was on his way back to town when he met Hopkins and his wife in the road. Hopkins and his. wife say they were going home when they met appellant; that he had a gun in his buggy, and, as he drew near them, appellant “picked up his gun, which I took to be a shotgun, and seemed to be unbreeehing it, or doing something with it, and I thought he was loading it, and, when he got within about 40 or 50 yards of me, he checked up his mule, and raised the shotgun and pointed it at me. Just as he did this my wife grabbed the lines and jerked our horse, and we both jumped out of the buggy. I was frightened, and thought he was going to shoot. I jumped out of the right side of my buggy, and my wife jumped out on the left side. I got under the fence on the right side of the road, and ran to the house of Mason Johnson, and called him, and asked him if he could not give me something to protect myself with. When my wife jumped out of the buggy, she got under the fence on the opposite side of the road, and ran around behind a tenant house of William Edwards on his place. As I was running toward Mason Johnson’s house, Forest Myers cursed me, and called mé a cowardly black son of a bitch.” Hopkins’ wife corroborates this evidence.

Appellant admitted he was going along the road and had a gun in his buggy, and that, when he drew near Hopkins and his wife, they jumped out of their buggy and ran, but denies he cursed any one on that occasion, and denies presenting the gun in a shooting position.

Appellant’s contention, first, is that, as no injury is shown, this would not constitute any offense, if the state’s testimony is true. This is not the law. Article 1013 of the (Penal Code provides that the use of a dangerous weapon, or the semblance thereof, in an angry and threatening manner, with intent to alarm another, and under circumstances calculated to effect that object, is an assault. If the state’s testimony is true, it was not only presented with the intent to alarm, but in fact his conduct with the gun did alarm and cause Mr. and Mrs. Hopkins to jump from their buggy, run under the fence, and flee, so it was not necessary that an actual injury be shown, as contended by appellant.

Appellant’s next contention is that, if the acts recited did constitute an assault, it would be a simple and not an aggravated assault. Neither can this contention be sustained. Article 1022 provides that an assault becomes an aggravated assault when committed with a deadly weapon under circumstances not amounting to an intent to murder. If appellant had actually fired the gun, it would amount to an assault to murder, and as he did not fire the gun, but only presented it in shooting position, when Mr. Hopkins fled, under (his article of the statute, the assault became an aggravated assault. That the gun appellant had with him on this occasion was a deadly weapon is shown by his testimony; he says it was a Winchester shotgun; and there is no contention that it was not in excellent shooting order.

There are no bills of exceptions in the record, but these questions are presented in various ways in the motion for a new trial and in the special charges requested, and are the only questions presented.

Finding no error in the record, the judgment is affirmed.  