Conviction for simple assault; punishment, a fine of $5.00.
The prosecuting witness swore that while in some debate with appellant over the present payment of rent, the latter ran his hand into his bosom and pulled out a pistol sufficient to show the cylinder and some inches of the barrel; that appellant then put the pistol back, but kept his hand in his bosom during the remainder of the controversy. This, if believed, might make out a case of assault under that part of Art. 1141, P. C., which states that the use of any dangerous weapon, or the semblance thereof, in an angry or threatening manner, with intent to alarm another, and under circumstances reasonably calculated to effect that object, comes within the meaning of an assault.
There are no bills of exception in this record. Appellant asked two special charges, but neither carries thereon notation of any exception taken to its refusal, nor is the court's action in such refusal made the subject of a separate bill of exceptions. The rule is quite clear that in misdemeanor cases such refusal must be brought to the attention of the appellate court by bill of exception. Daniel v. State, 90 Tex. Crim. 225, 234 S.W. Rep. 77; Crispi v. State, 90 Tex. Crim. 621; Traylor v. State, 91 Tex.Crim. Rep.. In this condition of the record we have nothing to review save the sufficiency of the testimony. When there is enough evidence in the record, if believed, to make out a case, this court will not disturb the verdict.
The judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.