Aggravated Assault and Battery — When Committed with a Pistol — Deadly Weapon. — When the weapon used in committing an assault and battery is a pistol, the assault would not be aggravated unless it is shown that the pistol, in the manner in which it was used, was a deadly weapon, or that by its use serious bodily injury was inflicted.
ON MOTION FOR REHEARING.
SIMKINS, JUDGE.
Appellant moves for a rehearing on the ground of the insufficiency of the evidence to sustain a conviction for an aggravated assault. A re-examination satisfies us that the motion should be granted. The record shows that appellant struck Phillips on the side of the head with the pistol; that the pistol fired accidentally at the time of the blow, cutting out a piece of Phillips' ear, and slightly powder-burning his face. The record fails to show the size or weight of the pistol, or that any injury was inflicted on Phillips from its use as a bludgeon, except the accidental result above stated. In Pierce's case, 21 Texas Criminal Appeals, 548, it was held, that where a pistol is used to strike with, the assault would not be aggravated unless it is shown that the pistol, in the manner in which it was used, was a deadly weapon, or that by its use serious bodily injury was inflicted. Melton v. The State, 30 Texas Crim. App., 273; Wilson v. The State, 15 Texas Crim. App., 150; Hunt v. The State, 6 Texas Crim. App., 663.
The rehearing is granted. The judgment is reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring.