Haverbekkenv.the State

Court of Criminal Appeals of TexasNov 19, 1919
86 Tex. Crim. 260 (Tex. Crim. App. 1919)

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No. 5569.

Decided November 19, 1919.

Assault — Sufficiency of the Evidence.

Where the State's evidence showed that one of the defendants had in his possession a large rock, and the other had a stick and were within a few steps from the injured party, and approached him with the rock and stick drawn in a striking attitude, using threatening language, etc,. a conviction for assault is sustained under article 1008, penal code. Following: Yawn v. State, 37 Tex. Crim. 205, and other cases.

Appeal from the County Court of Bosque. Tried below before the Hon. W.A. York, judge.

Appeal from a conviction of assault; penalty, a fine of twenty dollars each.

The opinion states the case.

B.J. Ward, P.S. Hale, for appellant.

Alvin M. Owsley, Assistant Attorney General, for the State.

The appellants were convicted of assault. From the standpoint of the State, the evidence disclosed that the alleged injured party was engaged in working 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 the 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 he 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 coupled 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 Texas Crim. App., 306; McKay v. State, 44 Tex. 48; Bodeman v. State, 40 S.W. Rep., 981; Brister v. State, 40 Tex. 505; Yawn v. State, 37 Tex.Crim. Rep..

The judgment is affirmed.