
    J. W. Hardin v. The State.
    On a trial for an assault with intent to kill, the evidence showed that the deiendant committed the assault upon a person of the same surname as that of the person designated in the indictment, hut did not otherwise identify the person upon whom the assault was made: held, that the evidence did not sustain a conviction, and that the defendant’s motion for a new trial, on the ground that the verdict was contrary to the evidence; was erroneously overruled.
    Appeal from Denton. Tried below before the Hon. it. L. Waddill.
    The facts sufficiently appear in the opinion.
    Attorney-General, for appellee.
   Bell, J.

There is nothing in the evidence to sustain the allegation in the indictment that Hardin made an assault upon William A. Rathburn-, and shot and wounded him. The evidence shows that some person by the name of Rathburn was shot by Hardin, but it does not show that William A. Rathburn, the party named in the indictment, was shot. Hardin moved for a new trial on the ground that the verdict was contrary to the evidence. The motion ought to have been sustained.

The judgment is reversed and the cause remanded.

Reversed and remanded.  