The appellant was indicted by the grand jury of Johnson County for the crime of mayhem, as follows:
“The said Oscar Wilson, in the county and State aforesaid, on the 5th day of July, 1923, did wilfully, unlawfully, knowingly, maliciously, feloniously and of his malice aforethought and with premeditation, commit an assault upon one Dr. J. L. Post, and the ribs and nose of said Dr. J. L. Post did then and there break and disable * * * by striking, beating and stamping, with the unlawful and felonious intent then and there to disable and maim the said Dr. J. L. Post,” etc.
*495There was testimony for the State tending to prove that appellant came up behind. Dr. Post and struck him behind the ear, knocked him down, kicked him in the face and in the ribs, broke his nose and some of his ribs, and inflicted severe injuries on the side of his head and ear. Witnesses for the State testified that they did not see appellant with any weapon. He inflicted the injuries by striking and kicking Dr. Post.
The appellant testified that he met Dr. Post face to face, and Post rubbed against appellant with his shoulder, and at the same time shoved appellant and struck at him. Appellant then knocked Post down and hit him three or four licks, and some one walked up and told appellant not to hit him any more, and about that time Post raised up on his left hand and went with his right hand as though he was going into his pocket, and, when he did that, appellant kicked his hand. After appellant knocked Post down he desisted from further attack until Post turned over and reached for his hip pocket. Appellant had no weapon of any kind. He Hit Post with his fist.
The cour-t declared the law of the case in instructions to which the appellant here offers no objection. The jury returned a verdict finding appellant guilty of an aggravated assault, and assessed his punishment at a fine of $150 and sixty - days in jail. Judgment was' entered against appellant in accordance with the verdict, from which is this appeal.
The only contention of appellant is that the evidence was not sufficient to sustain the verdict. The undisputed testimony tends to show that the appellant inflicted the injuries by striking and beating Post with his fist, and by kicking him in the face and side. Appellant contends that this testimony does not sustain the verdict finding the appellant guilty of an aggravated assault, for the reason that no deadly weapon was used. Appellant is correct in this contention.
In the case of Warren v. State. 88 Ark. 322. the proof tended to show that Warren kicked a man by the name of Tardy while he was down, and a physician *496who examined the wounds testified that one or two of the wounds could have been caused by a man’s shoe. Warren was convicted of an aggravated, assault, and his punishment assessed at $100 and imprisonment for one hour in jail. The court said: £ £ There was no evidence to show that Warren assaulted Tardy with a deadly weapon, instrument, or other thing, and he therefore could not have been legally convicted of an aggravated assault. The evidence, however, was sufficient to convict Warren of an assault.” That case rules this, and shows that, where one attacks another, using no other weapon than by striking with his fists, or kicking, he does not use a deadly weapon in the sense of the statute. The shoes which a man wears as part of his ordinary apparel, in the common acceptation of that term, are not deadly weapons within the meaning of the statute. At least, such is the interpretation of the above case. Evidently the court, in the above case, thought that the statute was leveled against assaults made by deadly* weapons other than a man’s feet or hands, or by the ordinary wearing apparel — that is, by such deadly weapon, instrument, or other thing as, in the ordinary acceptation, is calculated, or likely, to produce death or great bodily injury. Shoes, as articles of ordinary wearing apparel, according to the decision of Warren v. State, supra, do not come within that category. A powerful man — a Dempsey or Firpo— might kill one by striking with the fist or kicking with the foot, but a great bodily injury by .this means would not be an assault with a deadly weapon, instrument, or other thing, in the sense of the aggravated assault statute. The indictment in this case, however, was sufficient to charge an assault and battery, the punishment for which is by fine in any sum not exceeding $200. The testimony was sufficient to justify a verdict finding appellant guilty of assault and battery and punishing him in the sum of $150 for that offense. The judgment therefore will be modified by remitting the imprisonment adjudged against the appellant, and, as thus modified, the judgment is affirmed.