Grimes v. State
54 So. 839
Miss.
1911
Check Treatment
Anderson, J.,

delivered the opinion of the court.

The appellant was indicted for an assault with an ax with intent to kill and murder, was convicted of an assault, and appeals to this court.

It is said in 2 Bishop’s New Criminal Law, p. 19, §§ 31 and 32: ‘ ‘ One who rushes upon his adversary to strike, though not near enough for the blow to take effect, commits the offense (assault) provided he is sufficiently near to create in a person of ordinary firmness a fear of immediate violence unless he strikes in self-defense. . . . There is no need for the party assailed to be put in act*234ual peril, if only well-founded apprehension is created. For his suffering, is the same in the one case as in the other, and the breach of the public peace is the same.” Applying this rule to the undisputed facts of this case, it is clear the appellant is not guilty of the charge of which she was convicted. The evidence shows without conflict that the appellant was not in striking distance with the ax of the state’s witness Natalie Kelly, nor was she sufficiently near to put her in fear of being struck, nor was she prevented by any person, or other means, from striking. The court below, on the motion for a new trial, should have set aside- the verdict, and discharged the appellant. Reversed and remanded.