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ON STATE’S MOTION FOR REHEARING

BELCHER, Commissioner.

It is strenuously insisted that the evidence is sufficient to show that the assaulted party was decrepit when considered in accordance with the approved legal definition of that term as used in the statute and defined in the charge, and that this court erred in not so holding.

The evidence reveals the following, in addition to that shown in our original opinion:

The assaulted party was actively engaged in the management and operation of a 1400-acre farm.

*433A farm employee of the assaulted party testified that the latter drove a pickup and always came for him to go to work about 6:30 A.M.; that he had worked for the assaulted party for four years.

On the day of the difficulty the assaulted party and the appellant met in the road near their respective farms. At appellant’s suggestion they went to the back of a field to look at a fence line between the farms. After a discussion, an argument arose, resulting in the appellant striking the assaulted party. When the appellant began cursing him and shaking his finger in his face, the assaulted party took a hammer from the pickup and “brought that hammer around there, and he (appellant) backed away and he did not bother me any more”; that he told the appellant he would use the hammer and appellant got out of the way. The assaulted party got in his pickup and told the appellant he was going home and if he got closer than three hundred yards to him he would get hurt. The assaulted party then drove away. He did not suffer a heart attack during the difficulty nor at any time thereafter, according to the evidence.

4 Branch’s 2d 116, Sec. 1732, reads, in part, as follows:

“In order to warrant a conviction for an assault on a decrepit person the testimony must show that the victim was comparatively helpless in a personal conflict with one of ordinary health and strength, and that such condition on the victim’s part was because of his physical or mental weakness or defects. * * * ft

From a re-examination of the record, it is concluded that this case was properly disposed of originally.

The motion for rehearing is overruled.

Opinion approved by the Court.

Second motion for rehearing denied; WOODLEY, J., dissents.

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How this case has been treated — in progress