
    (86 Tex. Cr. R. 260)
    HAVERBEKKEN et al. v. STATE.
    (No. 5569.)
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1919.)
    Assault and battery ⅞=91 — Evidence of “assault.”
    .In a prosecution for assault, evidence that defendants ordered prosecuting' witness to desist in working upon a public road, one having in his possession a large rock and the other a stick, and threatening him with injury if he failed, held to show an offense, under Pen. Code 1911, art. 1008, providing that any attempt to commit a battery, .or any threatening gesture showing in itself,'or by words aceom-. panying it, an. immediate intention coupled with ability to cordmit a 'battery, is an “assault.”
    [Ed. Note. — For other -definitions, see Words and Phrases, First and Second Series, Assault.]
    
      Appeal from Bosque County Court; W. A. York, Judge.
    Criss and Martin Haverbekken were convicted of assault, and they appeal.
    Affirmed.
    B. J. Word and P. S. Hale, both of Merid-ian, for appellants.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellants were convicted of assault. Erom the standpoint of the state, the evidence disclosed that, the alleged injured party was engaged in work, ing upon a public road, and that the appellants ordered him to desist; and threatened to injure him if he failed, and that at the time one of them had in his possession a large rock, and the other had a stick. While only a few steps from the injured party, they approached him, with a rock and stick drawn in a striking attitude, and using threatening language, in consequence of which the alleged injured party did desist from the work he was doing.

The record suggests no question'for review save the sufficiency of the evidence, and this, we think, must be determined against '■ the appellants. The statute (article 1008, Penal Code) says:

“Any attempt to commit a' battery, or any threatening gesture showing, in itself or by words accompanying it, an immediate intention, eoupled'with ability to commit a battery, is an assault.”

The evidence shows an offense under this statute. See Higginbotham v. State, 23 Tex. 574; Johnson v. State, 14 Tex. App. 306; McKay v. State, 44 Tex. 48; Bodeman v. State, 40 S. W. 981; Brister v. State, 40 Tex Cr. R. 505, 51 S. W. 393; Yawn v. State, 37 Tex. Cr. R. 205, 38 S. W. 785, 39 S. W. 105.

The judgment is affirmed. 
      (g^jFov, other, .eases, see same topic and KE.Y-NUMBER in all Key-Numbered Digests and Indexes
     