ON APPELLANT’S MOTION FOR REHEARING
McDonald, judge.Appellant strenuously urges in his motion for rehearing that the facts are insufficient to support the verdict of the jury. We agree with appellant’s contention.
While it is not our desire to restate the facts appearing in the original opinion, we do think it desirable to here state the salient facts which were not stated in the original opinion.
When asked upon cross examination, “I’m just saying this, that Junior Gipson, when he took you away from Red’s place, it was for the purpose of giving you a whipping?”, the prosecutrix responded: "Yes.” The prosecutrix related that Gipson "took my ring away before he whipped me"; "He took it off my finger”. She further related that Gipson said: “It’s mine”, or “It belongs to me”.
Upon re-direct examination the prosecu-trix was asked: “That money that was taken from you, was that your money?”, and she replied: "I know I had it on me, and when I returned I did not have it with me”. Then the prosecutor asked later: “And was that ring and money taken against your will?” and she replied: "I guess the money was taken. I just said it was not with me zvhen I returned.”
It is clear to us that the facts are deficient and do not sustain the jury’s finding of appellant’s guilt for the offense of robbery by assault. The only type of assault made prior to the taking of the ring was when Gipson “was beating her head on the dash board.” The ring was first taken by Gip-son and the beating followed. Viewing the evidence most favorably to the state, it is only by the wording of the leading questions elicited by it that anything like a favorable bit of testimony is adduced. The prosecutrix’ testimony shows a mere taking of the ring off her finger, no giving up of the ring through fear. The testimony is totally lacking as to the one hundred dollars. All of the testimony in this respect shows that the prosecutrix had a hundred dollars, and then after the beating and after putting her clothes back on, she did not have it.
This case unquestionably presents a sordid story, but we are called upon to apply the law to the facts uninfluenced by ugliness. A reconsideration of the facts as dispassionate lawyers leads us to the inescapable conclusion that they do not show that this appellant took or participated in the taking of the ring or the money from the injured party by means of placing her in fear.
Accordingly, appellant’s motion for rehearing is granted, judgment is reversed and the cause remanded.