Haverbekken v. State

216 S.W. 397, 86 Tex. Crim. 260, 1919 Tex. Crim. App. LEXIS 397

Opinion

MORROW,

Judge.—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 be 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 Texas, 574; Johnson v. State, 14 Texas Crim. App., 306; McKay v. State, 44 Texas, 48; Bodeman v. State, 40 S. W. Rep., 981; Brister v. State, 40 Texas, 505; Yawn v. State, 37 Texas Crim. Rep., 205.

The judgment is affirmed.