
    VEGA v. STATE.
    (No. 9278.)
    (Court of Criminal Appeals of Texas.
    No. 4, 1925.)
    Homicide <&wkey;l 16(1) — Instruction on right of self-defense in assault to murder held too restrictive.
    In prosecution for assault to murder, where accused contended that he was attacked first, and hit his opponent over the head with a pistol in self-defense, whereupon it was discharged, instruction that he was only given the right of self-defens^ if he believed the injured party was about to draw a weapon, with which to attack him and inflict death or serious bodily injury, held too restrictive.
    Appeal from District Court, Lee County; R. J. Alexander, Judge.
    Apolonio Vega, alias Paul Vega, was convicted of an assault to murder, and he appeals.
    Reversed and remanded.
    The Bowers, of Giddings, for appellant.
    Sam D. Stinson, State’s Atty., of Greenville, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   LATTIMORE, J.

From a conviction in the district court of Lee county for assault to murder, with punishment fixed at three years in the penitentiary, this appeal is taken.

The parties to this case and most of the witnesses are Mexicans, and it is difficult for us to know just what was intended to be said by witnesses whose statements as interpreted appear in many places self-contradictory, however, we observe that the appellant and his witnesses claim that an attack was made by the injured party upon appellant, and some difficulty is observed in ourselves attempting to solve the question as to how serious the attack appeared to the appellant. Be that as it may, an exception was taken to paragraph 9 of the court’s charge upon the ground that it was too restrictive of the right of appellant to defend himself, in that he was only given the right of self-defense in the event he believed the injured party was about to draw a weapon with which to attack him “and inflict death or serious bodily injury.upon him the said defendant.” It is contended in connection with this exception, and also a special charge was presented embodying the proposition, that defendant had the right to defend himself against any character of assault on the part of the alleged injured party. Special charge No. 2, which was refused, was as follows:

“You are charged that the defendant Apolonio Vega, at the time he struck the said Antonio Oruz with the pistol, had the right to defend himself against an ordinary assault, as well as against one which would produce fear of death or serious bodily injury.”

Appellant’s contention in the evidence was that, when he was attacked by the alleged injured party, he struck said party with his pistol which was thus discharged. The matter has been before this court in other similar cases, in which we held it reversible error for the court in a. proper case to so restrict the rights of the accused in this regard. Collins v. State, 47 Tex. Cr. R. 115, 81 S. W. 300; Sprinkle v. State, 49 Tex. Cr. R. 224, 91 S. W. 787; Holcomb v. State, 98 Tex. Cr. R. 456, 265 S. W. 1039; Britton v. State, 95 Tex. Cr. R. 209, 253 S. W. 519; Dickey v. State, 99 Tex. Cr. R. 83, 268 S. W. 462. The special cliarge might he open to the objection that it was on the weight of the evidence, but otherwise the principle involved was correct.

Appellant presented a motion for a new trial, among other grounds, setting up newly discovered evidence. The matter contained therein might be serious, if the action of the court in refusing to grant a new trial had been preserved by a bill of exceptions containing the evidence and duly filed within term time. This matter will not probably arise upon another trial and will not be further discussed.

For the error of the court in the matter of the charge above referred to, the judgment will be reversed, and the cause remanded. 
      <Ss»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     