#### REEVES v. STATE.

No. 24211.

Court of Criminal Appeals of Texas.

Feb. 2, 1949.

E. T. Miller and W. F. Nix, both of Amarillo, for appellant.

Ernest S. Goens, State’s Atty., of Austin, for the State.

DAVIDSON, Judge.

Aggravated assault is the offense; the punishment, a fine of $150.

' The sufficiency, of the evidence to support the conviction is challenged.

The sheriff appealed to the district supervisor of the Liquor Control Board that inspectors of the Liquor Board be sent into his county to assist in enforcing the liquor laws of that county. Pursuant to this request, appellant and one Money, each am inspector for the Liquor Control Board, were assigned to that work.

They reported to the sheriff, who apprized them that he suspected a certain person of bootlegging and that he did not know who the person was but that he was reported to drive a certain automobile, the license number of which he gave to the inspectors. With this information, the two inspectors separated. Appellant went into a pool hall; Money, to a cafe nearby.

As Money entered the cafe he was recognized by one Spruill, who began to curse him and accuse him of having “framed” him. This precipitated a fight; the parties fought through the door and onto the sidewalk.

Appellant saw the fighting and, believing"; his partner, Money, was in trouble or was attempting to make an arrest, went to Money’s aid and struck Spruill over the head with a pistol.

■. Muir, the injured party in this case, and ; Spruill’sffeployer, saw” the appélfánt "strike i Spruill. He ordered appellant to . put up his gun and quit hitting Spruill. As to what then happened, we quote from Muir’s testimony upon direct examination, as follows : “As I said, when I first ran out there, Mr. Reeves was hitting Glen Spruill over the head with a pistol. When I ran ' up to him I told him to put his gun up, and •Then he began to back up; I never did get ^closer than three or’four'or five feet from ] him. I was walking towards him; wasn’t \ running. As well as I remember, he told me to stop, but that is all he said. When he told me -to stop, I did stop for a second, iand then I went on. He shot me in the *20'right knee; went under the skin on my left leg, above the knee. I don’t know whether I cursed him before he shot me, or not, — however, I would say that I did, yes; I can’t recall what I said but I imagine I was cursing, all right.”

Upon cross-examination, he testified: “When I went toward him, I wanted him to put his gun up. I was not willing to fight him, but v/as following him so -he would put up his gun, or try to get it away from him before he killed somebody. I would .say he backed up ten or twelve feet. I was not cursing him all the time, but I might have been doing a pretty good job with what words I did use. I do not recall, but I might have called him anything at •the 'time; I probably called him a bastard, or son of a bitdh, something like that, and he kept backing up for a short ways, and I kept following *him** *

The testimony of the State’s witness Curnutt, as also that of the appellant, corroborates the testimony of Muir as to the fact that he (Muir) was advancing upon f appellant and cursing him and appellant •was retreating when the shot was fired.

Muir denied that he knew appellant was •a peace officer until after the difficulty had ended, when appellant so advised him.

In testing the sufficiency of the evidence we do so upon Muir’s testimony, alone.

Under the provisions of art. *666-7b,*Vernon’s P.C., inspectors of the Liquor [Control Board are peace officers. It was {appellant’s duty, then, to stop the fifht. 'It was equally Muir’s right to aid his fritod »iUIIj mi i ■■¡Mini —-----— 5⁄8-1⁄8_ ag-aiiiS’t^hathe.tlioj.gm was an OTprovoked .assauft^by the appellant./ But Muir did not stop with that, for, after appellant bad ceased the attack on Spruill and was backing away, Muir continued to advance upon >■ appellant and to curse him and, notwithstanding appellant’s telling him to stop, '' continued to advance upon him.

The conclusion is reached that Muir, by his own testimony, shows that the injury inflicted upon him was while he (Muir) was advancing toward and cursing the appellant.

We are unwilling, under the circumstances, to affirm the conviction.

The judgment is reversed and the cause is remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and •approved by the court.