The appellant was indicted for seriously threatening to take the life of one Ogins Tarleton, in Rusk County, on May 7, 1877. On August 9, 1877, a trial was had, which resulted in a verdict of guilty, the jury assessing the punishment of the accused at confinement in the penitentiary for a period of one year; and judgment was entered agreeably to the verdict.

*108A motion for a new trial was made, on the ground that the verdict was contrary to the evidence and not supported by the evidence, which was overruled, and the ruling of the court on the motion is assigned as error.

From a careful examination of the evidence as set out in the transcript, we are of opinion the jury were not warranted in finding that the alleged threat was seriously made. It clearly appears that, at the time the threat was made, the accused was in a condition to have put his threat into execution if he had so desired, and that it was not then attempted, nor did any one interfere to prevent it; and, further, that, from the time the threat is alleged to have been made until the time of the trial, the parties had lived in the same neighborhood, and the accused had made no attempt to injure the threatened party.

From all the evidence before us we are forced to the conclusion that the threat made, as set out in the indictment, was but a rash and inconsiderate expression, provoked by an angry altercation in which the parties were at the time engaged. Haynie v. The State, 2 Texas Ct. App. 168.

Because of error in the court below, in overruling the motion for a new trial, the judgment is reversed and the cause remanded.

Reversed and remanded.