J. H. Warren v. The State, 33 Tex. 517

Lindsay, J. The motion to quash the indictment was properly overruled.

There was enough charged to show that there was an offense committed against the laws of the State, if the allegations were true; and it did not appear therefrom that the prosecution was barred by lapse of time; nor that the offense was committed after the finding of the indictment; nor did it set forth any matter which was a legal defense, or bar to the action ; some one of which incidents is necessary to constitute a valid exception to the substance of an indictment. (See Art. 2954, Paschal’s Digest.) But this court feels fully justified in disturbing the verdict of the jury, because no evidence appears in the statement of facts, which either establishes an assault, simple or aggravated; or even an attempt to commit a battery.

The actual assault was committed by the peraen upon whom the assault was charged to have been made.

The proof shows that the accused came up to a company, with whom Newton Roberts was conversing, with a cocked pistol in hand, swinging by his side; and addressing himself to Roberts, said, “ I am now ready for you.” He did not raise or point the pistol at Roberts, but Roberts immediately approached him, seized him by the collar, commenced pushing him back, and continued to push him back some thirty feet, when the accused struck him with his pistol, extricated himself from his grasp, and went off into a neighboring store.

The dangling of the cocked pistol, and the declaration that he was “ new ready for him,” were no such threatening gesture, accompanied with words, showing an immediate intention to commit a battery. To make the most of it, it was but a challenge, and not the manifestation of a purpose to commit a battery, unless that challenge was accepted.

This condition placed the matter entirely under the control of the challenged party; which control he very unwisely and very improperly exercised." He it was who committed the assault, by reason of this provocation no doubt; and which verbal provocation could bo no justification for the assault first committed by-the challenged.party.

There is no evidence that the accused even pointed the pistol at the challenged party ; and the pointing of the pistol, unless the proof showed that it was loaded, does not constitute an assault. (See Art. 2144, Paschal’s Digest.) There being no evidence adduced on the trial, establishing the commission of an assault by the accused, the judgment is reversed and the cause dismissed in the court below. Reversed and dismissed.