No. 6383.

#### Henry Bawcom *v.*The State.

Assault—Fact Case.—See the statement of the case for evidence *held*insufficient to support a conviction for assault.

Appeal from the County Court of Llano. Tried below before the Hon. E. C. Bonham, County Judge.

The information charged an aggravated assault, and the verdict found appellant guilty of a simple assault and assessed the penalty at a fine of five dollars.

Belton Waits was the first witness for the State. He testified that he lived in Llano county, Texas, about twelve miles distant from the town of Llano. On the morning of July 12, 1888, the witness and his brother Clabe went to work in the field that they had rented from Mrs. M. J. Chadoin. Their work was cutting top fodder. The defendant and Mr. and Mrs. Chadoin and Travis Chadoin were engaged in like work in another part of the said field. Witness’s brother called to J. A. Chadoin to *621come to where he and witness were, as he desired to see the said J. A. Chadoin alone, about the top fodder. J. A. Chadoin came to where witness and Clabe were, and he and Clabe retired to a point fifteen or twenty steps distant from witness, squatted down in the weeds, and proceeded to talk about the fodder. While Clabe and J. A. Chadoin were thus engaged, the defendant came to a point near the witness and said to him: “What kind of a game is this you are giving aunt about the fodder?” Witness replied: “Go away and don’t bother me.” Defendant then advanced to a point within two or three steps of witness, holding a butcher knife. in one hand and a case knife in the other, and said to witness: “I will carve your damned heart out of you.” Witness backed off and turned to go home, when defendant said to him: “Go on home and get your daddy, and tell him to bring his gun and two or three more if he has them.” Witness then went home, passing near Clabe and Jim Chadoin.

On his cross examination, the witness said that he and Ms brother had rented and were cultivating Mrs. Chadoin’s field. They were to pay, as part of the rent, one-third of the fodder grown. Witness and Clabe were cutting fodder on that part of the field which they had reserved for themselves, and the Chadoins and defendant were cutting fodder on the part of the field they had assigned to Mrs. Chadoin. Defendant was a nephew of Mrs. M. J. Chadion, and was working for her at the time of the difficulty. J. A. and Travis Chadoin were near by when the difficulty occurred. Defendant was whetting the knives together when he approached and spoke to the witness. Witness supposed that defendant had been cutting fodder with one of the knives.

The State rested.

Travis Chadoin was the first witness for the defense. He testified that he was present and witnessed the trouble between defendant and Belton Waits. While the parties named by Waits in his testimony were cutting fodder in the field, Clabe Waits called to J. A. Chadoin to go and talk with him about the fodder. When Clabe and J. A. Chadoin stepped aside, the defendant asked Belton Waits: “What kind of a game is this you are putting up on aunt, in cutting all the fodder and leaving none for rent?” Belton Waits replied to defendant: “That is none of your damned business!” Defendant replied: “I suppose it is some of my business, as my aunt employed me to *622cut her part of the fodder, and I don’t intend to see her treated so.” Belton Waits then said: “I will go home and get my father, and he will settle with you.” Defendant replied: “Go home and get your father; I can reason with him.” Belton Waits then went home, and defendant, witness and Mrs. J. A. Chadoin went to where J. A. Chadoin and Clabe Waits were talking. During the whole of the conversation between defendant and Belton Waits, the witness stood within two feet of defendant, and he knew that defendant did not strike nor attempt to strike Belton Waits with a knife or anything else, nor did he make any threat to strike or do him violence. Defendant had two old knives in his hand, sharpening them by whetting them together, which said two knives he had been using in cutting fodder.

On cross examination, the witness said that defendant spent a large part of his time at the house of his aunt, Mrs. M. J. Chadoin, and was in her employ at the time of this difficulty. He had nothing to do with the management of Mrs. Chadoin’s business. J. A. Chadoin was Mrs. M. J. Chadoin’s business manager, and both witness and defendant worked under the orders of J. A. Chadoin.

Mrs. J. A. Chadoin testified, for the defense, substantially as did the witness Travis Chadoin, stating positively that defendant neither struck, struck at nor threatened to strike Belton Waits.

J. A. Chadoin testified, for the defense, that on the morning of July *12,*1888, while he and his wife, defendant and Travis Chadoin were cutting rent fodder on the land rented by the Waits boys from witness’s mother, the brother of defendant, Clabe Waits, called witness to him to talk over the disagreement about the fodder. Witness, accompanied by his wife, defendant and Travis Chadoin, went to where the Waits boys were. Clabe requested witness to step aside, as he wanted to talk to witness privately. While talking with Clabe Waits the witness heard Belton Waits say: “It is none of your damned business.” Witness, who was then squatted, raised up and saw all that transpired between defendant and Belton Waits. Defendant was standing still, whetting two old knives together. Witness told the boys not to have a fuss. About that time all of the parties on the ground came to where witness and Clabe Waits were. Belton Waits started home, saying that he would get his father to settle the matter. Defendant replied to him: *623“If you will get your father we can reason the matter. Witness then told Belton that he and Clabe had settled the disagreement about the fodder, and for him,- Belton, to come back. Clabe Waits told Belton the same thing, but Belton refused to come back and went on home. Mrs. M. J. Chadoin was the mother of the witness. Her entire business was under the management of the witness, and defendant was then working under witness for Mrs. M. J. Chadoin.

Opinion delivered May 15, 1889.

The defense closing, the State introduced Clabe Waits in re buttal. He testified that immediately after the alleged assault upon Belton Waits by defendant, the several parties in the field came to where witness and J. A. Chadoin were talking over the fodder matter. Belton Waits was then told by defendant to go and get his father and to tell his father to bring his gun and four or five more if he had them.

Ho brief for the appellant.

*W. L.*Davidson, Assistant Attorney General, for the State.

White, Presiding Judge.

Because we are of opinion that the facts shown in the record before us are wholly insufficient to support a conviction for an assault by appellant upon the alleged injured party, Belton Waits, the judgment is reversed and the cause remanded. The case is not analagous to Coker’s case, 22 Texas Court of Appeals, 20.

*Reversed and*remanded.