
    CLARK v. STATE.
    (No. 8507.)
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1925.)
    1. Assault and battery <§=>53 — Defendant held not guilty of “assault,” where making no demonstration or using threatening language with gun in his possession.
    Defendant, who went to witness to secure his impounded stock with a gun, which he carried with barrel pointed at ground, and who made no demonstration with it and used no threatening language and who replied in affirmative whether he had brought gun to secure his stock, without changing his position or raising gun or making threat to use it, field not guilty of assault within Pen. Code 1911, art. 1008, and article 1013, subd. 3.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Assault!]
    2. Assault and battery <©=48 — Defendant’s threat to turn witness over to undertaker held not to constitute an “assault.”
    Defendant who went to witness to secure his impounded stock, and who, in reply to witness’ threat to turn stock over to officers, stated that he would turn witness over to undertaker, held not guilty of assault within Pen. Code 1911, art. 1008, and article 1013, subd. 3, where at time of making remark defendant was going away from witness and distance was not shown, nor was it claimed that he made any demonstration with gun in his possession.
    Appeal from Rockwall County Court; J. W. Reese, Judge.
    Guinn Clark was convicted of simple assault, and be appeals.
    Reversed and remanded. '
    H. M. Wade, of Lubbock, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., botb of Austin, for the State.
   MORROW, P. J.

The offense is simple assault; punishment fixed at a fine of $25.

It is tbe contention of the state that tbe facts warrant a conviction for violating tbe provisions of article 103, subd. 3, of tbe Penal Code. Tbe witness Rainey impounded some stock belonging to tbe appellant. Upon learning this appellant and bis son went to tbe borne of Rainey and asked to see him. When be appeared, they told him that they bad come after their stock.

Appellant bad in bis possession a gun which be was bolding in his bands, with tbe muzzle towards tlie ground and the stock near his shoulder. Rainey claimed that in reply" .to his inquiry "as to whether the gun was brought for the purpose of getting the stock, appellant said, “Xes.”. This the appellant denied. Rainey also claimed that when the appellant left the premises, he went out in the road an,d said he would go no further/ After a time the appellant and his son proceeded, ' and; as they went, Rainey hollered to them that he would, turn the stock over to the officers, whereupon appellant said that if Rainey did so, he (appellant) would turn him over to the undertaker. This the appellant also denied.

It is the theory of the state that the phase of the statute violated .is subdivision 8 of article 1013, P. 0. This article is found in title 15, c. 1, defining assault and battery.

In article 1008, P. C., it is said:

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

Article 1013, P. O., defines the term “coupled with ability to commit,” and uses this language:

“But the use of any dangerous weapon, or the semblance thereof, in an angry or threatening manner, with intent to alarm another, and under circumstances calculated to effect that object, comes within the meaning of an assault.”

In the present case, the possession of the gun by the appellant was not unlawful, nor do we believe that the evidence reveald that he made an .unlawful use of it. He had it in his possession and carried it with the stock under his arm and the barrel pointed at the ground. I-Ie. made no demonstration with it; he’ used no threatening language. Appellant said that he came for his stock. The prosecuting witness asked if it was for that purpose that he brought the gun. If the appellant was guilty, it was because in reply to that question he answered “Xes.” It is not claimed that he changed his position, that he raised the gun, or that he made any threat to use it. On the contrary, when ordered off the premises, he left and went to his home. He sent his son back for his stock, paying the damages asked by the prosecuting witness. The fact, if -it be a fact, that in reply to the threat of Rainey to turn his stock over to the officers the appellant said that he would turn Rainey over to the undertaker, seems not to bring the ease within the moaning of the statute. At the time of making this remark the appellant was going towards his home, and was going away from the alleged party. The distance was not shown. It was' not claimed that he raised his gun or made any demonstration with it. The threat, if any, was conditional. It is believed that the interpretation put upon his acts by the jury is not warranted by the facts proved.

The judgment • is • reversed and the cause remanded. 
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