
    John Stephenson v. The State.
    
      No. 204.
    
    
      Decided March 28.
    
    Aggravated Assault and Battery — When Committed with a Pistol — Deadly Weapon. — When the weapon used in committing an assault and battery is a pistol, the assault would not he aggravated unless it is shown that the pistol, in the manner in which it was used, was a deadly weapon, or that by its use serious bodily injury was inflicted.
    Appeal from tbe District Court of Grayson. Tried below before Hon. T. J. Brown.
    Appellant was. indicted for assault with intent to murder one Joe Phillips. At bis trial be was convicted of aggravated assault and battery, bis punishment being assessed at a fine of $100.
    Tbe main facts are concisely but sufficiently stated in tbe opinion.
    
      JELazleivood & Smith, for appellant.
    A conviction for aggravated assault, committed by tbe use of a deadly weapon, is not supported by evidence that fails to show tbe deadly character of such weapon in tbe manner of its use. Key v. Tbe State, 12 Texas Crim. App., 512; Miles v. Tbe State, 23 Texas Crim. App., 413; Williamson v. Tbe State, 5 Texas Crim. App., 487; Wilks v. Tbe State, 3 Texas Crim. App., 34; Skidmore v. Tbe State, 43 Texas, 94; Hilliard v. Tbe State, 17 Texas Crim. App., 210; Melton v. Tbe State, 30 Texas Crim. App., 273; Pierce v. Tbe State, 21 Texas Crim. App., 548.
    In this case tbe assault was committed with a pistol, and in order to sustain a conviction for an aggravated assault, the pistol, in tbe manner of its use, must be proven to be a deadly weapon. Key’s case, 12 Texas Crim. App., 512; Miles’ case, 23 Texas Crim. App., 413; Wilks’ case, 3 Texas Crim. App., 34; Skidmore’s case, 43 Texas, 94.
    
      B. L. Hermj, Assistant Attorney-General, for tbe State.
   ON MOTION FOB. BEHEABING.

SIMKINS, Judge.

Appellant moves for a rebearing on tbe ground of tbe insufficiency of tbe evidence to sustain a conviction for an aggravated assault. A re-examination satisfies us that tbe motion should be granted. Tbe record shows that appellant struck Phillips on tbe side of tbe bead with tbe pistol; that tbe pistol fired accidentally at tbe time of tbe blow, catting out a piece of Phillips’ ear, and slightly powder-burning bis face. Tbe record fails to show tbe size or weight of tbe pistol, or that any injury was inflicted on Phillips from its use as a bludgeon, except the accidental result above stated. In Pierce’s case, 21 Texas Criminal Appeals, 548, it was held, that where a pistol is used to strike with, tbe assault would not be aggravated unless it is shown that tbe pistol, in tbe manner in which it was used, was a deadly weapon, or that by its use serious bodily injury was inflicted. Melton v. The State, 30 Texas Crim. App., 273; Wilson v. The State, 15 Texas Crim. App., 150; Hunt v. The State, 6 Texas Crim. App., 663.

Tbe rehearing is granted. Tbe judgment is reversed and tbe cause remanded.

Reversed and remanded.

Judges all present and concurring.  