¶1The appellant, after conviction, moved the court to grant him a new trial, for the reason that the verdict of the jury is contrary to the law as given by the court, and to the evidence before the jury.
¶2On the trial below, the court was requested by the defendant’s counsel to charge as follows : “If the jury have a reasonable doubt as to the guilt of the defendant, they will give him the benefit of it and acquit him.”
¶3From the evidence as we find it set out in the transcript we are of opinion the court should have granted a new trial on the grounds set out in the motion. Three witnesses testified on the trial; the person upon whom the assault is alleged to have been made, and two others—one for the state and one for the defendant.
¶4We have carefully examined the statement of facts without being able to discover that the defendant committed any assault upon the person of the prosecuting witness. Agreeably to the Penal Code, “any attempt to commit a battery, or any threatening gesture, showing in itself, or by words accompanying it, an immediate intention, coupled with an ability, to commit a battery, is an assault.” The intention and the ability to inflict injury must concur, to constitute an assault.
¶5We would hesitate to reverse a conviction supported by any uncontradicted testimony, when the court below had *246refused a new trial; but when, as in this case, there is such an unmistakable preponderance of evidence in faVor of the' accused in the material points necessary to constitute an assault, we think the verdict should have been set aside. ' The charge asked by the defendant, and refused, the-accused was entitled to, and it was error to refuse it under the evidence.
¶6For these errors the judgment of the district court is reversed and the cause remanded.
¶7 Reversed and remanded.