The evidence in this case does not sustain the charge of an assault with intent to kill and minder. Heither does' it establish that there was either an aggravated or a simple assault committed. From the proof exhibited in the record, it is apparent, that whatever may have been the intention of the appellant, as manifested by threatening gestures and accompanying words, that intention was not coupled with the ability to commit a battery. Without this ability, coupled with the attempt, there could be no assault.

The judgment is reversed and the case dismissed.

Reversed and dismissed.