Prosecution was begun by affidavit, in which defendant was charged with having committed an assault on Mrs. Raymond Landers with a weapon. On the trial, and after the evidence was all in, the defendant requested the court, in writing to give to the jury, in his behalf, the general affirmative charge.
An "assault" is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at any time, an intention to do it, coupled with a present ability to carry such intention into effect. Such was the rule at the common law approved by the Supreme Court in Tarver v. State, 43 Ala. 354; Burton v. State, 8 Ala. App. 295, 62 So. 394; Yates v. State,22 Ala. App. 105, 113 So. 87.
Whatever may be said of the conduct of the defendant at the time testified to by the prosecutrix, there is no evidence in the record tending to prove any assault on the part of this defendant. Even conceding that the defendant had a stick in his hand at the time testified to by the prosecutrix, and conceding that the prosecutrix had a fear that defendant would strike her with the stick, there is no evidence tending to prove that the defendant ever made any demonstration or movement, or effort to strike the prosecutrix on the occasion testified to.
The defendant was entitled to the affirmative charge, and for the error of the trial judge in refusing this charge, the judgment is reversed and the cause is remanded.
Reversed and remanded.
On Rehearing.