*163 ON MOTION FOB. BEHEABING.

Appellant moves for a rebearing on tbe ground of tbe insufficiency of tbe evidence to sustain a conviction for an aggravated assault. A re-examination satisfies us that tbe motion should be granted. Tbe record shows that appellant struck Phillips on tbe side of tbe bead with tbe pistol; that tbe pistol fired accidentally at tbe time of tbe blow, catting out a piece of Phillips’ ear, and slightly powder-burning bis face. Tbe record fails to show tbe size or weight of tbe pistol, or that any injury was inflicted on Phillips from its use as a bludgeon, except the accidental result above stated. In Pierce’s case, 21 Texas Criminal Appeals, 548, it was held, that where a pistol is used to strike with, tbe assault would not be aggravated unless it is shown that tbe pistol, in tbe manner in which it was used, was a deadly weapon, or that by its use serious bodily injury was inflicted. Melton v. The State, 30 Texas Crim. App., 273; Wilson v. The State, 15 Texas Crim. App., 150; Hunt v. The State, 6 Texas Crim. App., 663.

Tbe rehearing is granted. Tbe judgment is reversed and tbe cause remanded.

Reversed and remanded.