majority">Hart, J.,

(after stating the facts.) No complaint is made of the instructions given by the court, and the sole question raised by the 'appeal is, was the evidence sufficient to sustain a verdict for appellee? In other words, was appellee justified in striking appellant under the evidence, when considered in the light most favorable to him? We think not. • The blow inflicted by him was not given in necessary self defense. He had not been assaulted by appellant.

In speaking of our statute in regard to assaults, in the case of Pratt v. State, 49 Ark. 179, the court said: “The intention and ability to commit the battery must both be shown, before an assault of any kind can be made out.” This was approved in later cases of Anderson v. State, 77 Ark. 37, and Williams v. State, 88 Ark. 91.

It is manifest from appellee’s own testimony that appellant did not intend to strike him; for he says that appellant told him that he could make him get out of the filing room but not off of the platform. It is also manifest from his own testimony that he did not strike appellant because appellant had offered to strike him; for he says, in effect, that he struck appellant because he was interfering with the work of the other employees. The undisputed testimony shows that appellee was the aggressor. His answer does not .set up any matter of justification, but in it his only averment is of facts in mitigation of damages.

In his answer appellee averred that he struck him with an iron pipe because of the insults and indignities that appellant offered him. In his testimony he states that he struck appellant with the stick because he was interfering with his men, and nowhere in the record does it appear that he struck him in necessary self defense.

A careful consideration of the testimony léads us to conclude that the evidence is not sufficient to support the verdict.

Therefore the judgment is reversed, and the cause remanded for a new trial.

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