¶1delivered the opinion of the court.
¶2Quintín Dávila was pronounced guilty of assault and battery with aggravated circumstances under a complaint that merely -charged an assault and battery with the butt-end of a revolver, and the complaint contained no other averment which brought the case under any of the ten special instances of aggravation enumerated in the Act of March 10, 1904. He appeals from' the judgment of fifty dollars rendered against him and the appeal involves the sufficiency •of the complaint and likewise the sufficiency of the proof.
¶3The blow in this case was struck with 'the butt-encl of a revolver. The only provision of law applicable to this complaint which could enlarge the prisoner’s crime from a simple assault and battery is contained in No. 8 of section 6 of the said Act of March 10, 1904; or, in other words, when fhe battery is committed with a deadly weapon under circumstances not amounting to an intent to kill or maim. The fiscal concedes that no assault and battery with aggravated circumstances was shown, inasmuch as a battery with the butt-end of a revolver is not ini itself an assault with a dan*314gerous weapon, and the reported jurisprudence supports him.. A dangerous or deadly weapon may be defined to be any instrument which will cause death or great bodily injury when used in the ordinary and usual manner contemplated by its design and construction. 2 R. C. L., Assault and Battery, sec. 25. In Filkins v. People, 60 N. Y. 191; 25 A. R. 143, it was held that a blow with the handle of a pitchfork used like a club was not an assault with a sharp, dangerous weapon within the statute against assaults with dangerous weapons. Mr. Chief Justice Eoberts, in the case of Skidmore v. State, 43 Texas 96, 97, pointed out that a pistol used to strike with is nothing more than a piece of iron of the-same size, weight and shape, and the case is cited with approval in Jenkins v. State, 30 Texas Court of Appeals, 380.
¶4In Acers v. United States, 164 U. S. 391, the court holds that a weapon is a deadly one dependent upon its use, and. cites, the case of Jenkins v. State, supra. Under these decisions a pistol used like a piece of iron is not necessarily a deadly weapon unless from its size it becomes so, and in this case there is nothing to show that the weapon was a deadly one from its size or that it was used in the manner of a deadly weapon; in other words, with deadly violence. Therefore, we think that there was no proof of an aggravated assault and battery.
¶5On the other hand, although the proof' is conflicting, there was evidence tending to show that the defendant assaulted the prosecuting witness with the butt-end of a pistol, caus- " mg wounds and bleeding in the manner recited in the complaint. Hence, the court was justified in imposing the maximum sentence of fifty dollars, and we see no reason to modify the judgment in any other regard than to strike out.therefrom the words, “with aggravated circumstances.” In its effects the case came near falling under No. 1 of the law in almost causing grave injuries.
¶6The judgment must be
¶7Modified.