
    SHUFFIELD v. STATE.
    (Court of Criminal Appeals of Texas.
    June 7, 1911.)
    1, Cbiminal Raw (§ 814) — Instbuctions.
    Under an information charging only assault, the case should not be submitted to the jury as assault and battery.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1979; Dec. Dig. § 814.]
    2. Assault and Battery (§ 56) — Evidence.
    Where accused, after ordering out of his store, one, who was his enemy, got his shotgun and pointed it at him, but did not fire it, or use it to strike with, and inflicted no injury, the acts of accused amounted to no more than simple assault, and did not constitute an assault with a deadly weapon.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 80, 81; Dec. Dig. § 56.]
    Appeal from Milam County Court; John Watson, Judge.
    Mark Shuffield was convicted of aggravated assault and battery, and appeals.
    Reversed and remanded.
    W. A. Morrison, for appellant.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of aggravated assault and battery; his punishment being assessed at a fine of $25.

The information and complaint charge appellant with committing an aggravated assault by means of a deadly weapon. The evidence shows that appellant and the alleged injured party were enemies, and had been for some time; that on the occasion of the trouble, out of which this trial and conviction arose, the alleged injured party was in the store of appellant, and appellant ordered him out. A war of words ensued, and the alleged injured party got out his pocket knife, and appellant got his shotgun, and presented it at the alleged injured party. The information did not charge an assault and battery, but limited the allegations to an assault. The court submitted the case to the jury under a charge of assault and battery. Complaint is made of this. Upon another trial this charge should limit the consideration of the jury to the law applicable to the charge against the accused.

There are some other matters suggested for revision, but only one of which we consider necessary to discuss; that is, the sufficiency of the evidence. As used by appellant, the gun was not a deadly weapon. It was not fired, nor was it used to strike with. No injury was inflicted. In fact, all that was done by the accused was to present the gun in a threatening manner under the circumstances already detailed. Under this character of evidence, and under our statute and decisions, we are of opinion this would not be more than a simple assault, from the state’s standpoint. We are not discussing any question of self-defense as against the knife, or threatened use of the knife, by the alleged assaulted party. In Haygood v. State, 51 Tex. Cr. R. 618, 103 S. W. 890, it was held that the use of a dangerous weapon, under our statute, when used for the purpose of threatening or alarming, is only a simple assault. It was, under the statute, originally held otherwise in McCullough v. State, 24 Tex. App. 128, 5 S. W. 839, and practically so in Blackwell v. State, 33 Tex. Cr. R. 278, 26 S. W. 397, 32 S. W. 128. These cases were all overruled in Pearce v. State, 37 Tex. Cr. R. 643, 40 S. W. 806. The latter case has been followed in quite a number of eases, among others, Tollett v. State, 55 S. W. 335, Smith v. State, 57 S. W. 949, and Vann v. State, 43 Tex. Cr. R. 244, 64 S. W. 243.

Under these authorities, we are of opinion that this judgment must be reversed, and the cause remanded; and it is accordingly so ordered.  