Appellant was charged with aggravated assault. The ground of aggravation laid, was the use of a gun, same being a deadly weapon. The State's case was that appellant, affronted at conduct of Scroggins, the alleged injured party, presented at him a shotgun demanding that he go and apologize to Mrs. Jackson, appellant's wife, or appellant would kill him. Scroggins stood not on the order of his going but went and apologized. Nothing further was done.
Appellant asked a special charge presenting the usual and customary definition of a deadly weapon which was refused, and the court having failed to define in his main charge that term, gave the special charge set out in our opinion as corrective of his omission. We are inclined upon mature reflection to conclude that we were in error in upholding the action of the trial court in refusing the special charge containing a correct definition of a deadly weapon and in giving the definition contained in the special charge which was given at the instance of the State. A shotgun, when merely used to alarm, is not a deadly weapon. McCutcheon v. State, 49 Tex.Crim. Rep.; Bean v. State, 49 S.W. Rep., 394; Ray v. State, 21 S.W. Rep., 540; Hall v. State, 105 S.W. Rep., 816; Shuffield v. State, 62 Tex.Crim. Rep.. Whether such gun was loaded or not was held a material matter in Pearce v. State, 37 Tex.Crim. Rep., but this was practically overruled in Hall v. State, supra, which succinctly states that if the gun be used to alarm, the offense would be but a simple assault, it mattering not whether the gun was loaded or unloaded. In the instant case if the gun was not a deadly weapon, that is not one which in the manner of its use was likely to produce death or serious bodily injury, the offense made by the State's pleadings was not supported by the proof. Upon another trial the court should submit simple assault. Yelton v. State,75 Tex. Crim. 38, 170 S.W. Rep., 319; Haygood v. State,51 Tex. Crim. 618; Ray v. State, supra; Wright v. State, 77 S.W. Rep., 809; Shuffield v. State, supra. In the Yelton case,supra, the accused had a deadly weapon in his hand in enforcing his demand for an apology from the alleged injured party to his wife. The facts are very similar to those in the instant case. In Shuffield's case, after a war of words the accused presented his shotgun at his enemy but did not try to discharge it. In Ray v. State, supra, appellant demanded a retraction at the hands of the alleged injured party, and when the latter was slow in making it, threw a shell into his gun. These were held to be cases of simple assault.
If the jury believed from the facts in the instant case that appelant had no further intent to use the shotgun in question than to alarm *Page 373 Scroggins and thus induce him to apologize to Mrs. Jackson, appellant would be guilty of nothing more than a simple assault. This is the construction now uniformly placed upon facts embraced by the third subdivision of Art. 1013, Vernon's P.C.
Being of opinion that said special charge for the defense should have been given, and that the court erroneously instructed the jury as to what was a deadly weapon, the motion for rehearing is granted, the judgment of conviction set aside, and the cause reversed and remanded for trial in accordance with this opinion.
Reversed and remanded.