
    Agapito Guerra v. State
    No. 25483.
    October 31, 1951.
    
      Hon. M. V. Ward, Judge Presiding.
    
      Galvan and Galvan, El Paso, for appellant.
    
      George P. Blackburn, State’s Attorney, Austin, for the state.
   WOODLEY, Judge.

Upon a trial by jury, appellant was convicted of an aggravated assault alleged to have been committed upon Carolina Guerra and his punishment was assessed at a fine of $100 and 90 days in jail.

The state’s evidence as to the assault consists of the testimony of an El Paso police officer who was cruising in a patrol car around midnight. He testified that he heard a woman screaming and drove toward her; that he found a lady lying on the sidewalk and a man standing over or near her; that as he approached, the man walked away; that the lady told the witness that the man had hit her, knocked her down and kicked her; that she was complaining of injuries to her foot; that the man who walked away was apprehended and taken to jail; that neither he nor his fellow officer saw appellant strike the lady; that the lady told them that appellant was the man that hit her and that he was her husband, and she said something about having a family quarrel.

The alleged injured party did not testify. A deputy sheriff testified' that he had been unable to locate Carolina Guerra, having been informed at the address given on the subpoena that she was appellant’s wife and was in Mexico.

The evidence is deemed insufficient to sustain the conviction.

The report made to the officers is not deemed sufficient to show that the lady found on the sidewalk was Carolina Guerra, the person named in the complaint and information, nor to show that an assault was committed upon her.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.  