
    HOLCOMB v. STATE.
    (No. 8215.)
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1924.)
    1. Homicide <&wkey;96(!) — Error to limit right of self-defense to oases where assault put defendant in fear of serious injury.
    In prosecution for assault to murder, instruction limiting exercise of right of self-defense to attacks which put defendant in fear of death or serious bodily injury was erroneous, in view of testimony that injured person had assaulted accused and threatened to whip him.
    2. Homicide <&wkey;96(l) — One may repel assault with force necessary to protect him.
    One has right to repel assault with force necessary to protect him, though assault is not such as would put him in fear of death or serious injury.
    3. Witnesses <&wkey;345(2) — Prosecution cannot bring about indictment for perjury against witness and use it to discredit witness upon subsequent trial.
    State cannot bring about indictment of witness for perjury in testimony as to same transaction given for defendant at former time and use indictment to discredit witness upon • subsequent trial.
    Appeal from District Court, Wichita County; H. R. Wilson, Judge.
    Ca.rl Holcomb was convicted of assault to murder and appeals.
    Reversed.
    Davenport, Cummings & Thornton, of Wichita Falls, for appellant.
    
      Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The conviction is for assault to murdar; punishment fixed at confinement in the penitentiary for a period of five years.

.According to the state’s,testimony, Skaggs, the injured party, approached the appellant about an injury that he had inflicted upon a boy named Bud Tucker. Appellant resented the interference and stabbed Skaggs. According to the appellant’s testimony, he had-had a fight with Tucker, and Skaggs accosted him and said: “Ca.rl, put up your knife; I am going to whip you.” Appellant, exhibiting his hand, said that his hand was broken and that he could not fight, Skaggs replied that he was going to whip him; that the broken hand made no difference. He struck at the appellant, who, at the time, had his knife in his hand, cleaning his finger nails. Appellant got loose, and observing Skaggs throw his hand to his hip, and believing that he was about to be killed, struck Skaggs with his knife. Skaggs denied that he made any assault, but said that when .the appellant exhibited his crippled hand, he was informed by Skaggs that the matter would be overlooked, but that without further provocation the appellant inflicted the knife wound upon him;

An eyewitness for the appellant testified that he heard Skaggs say: “Where is Carl Holcomb; X am going to whip him?” He also heard him. say to the appellant: “What did you hit Bud for?” Holcomb replied that' it started in play and that it was now over. Skaggs said: “Put up your knife; I am going to whip you.” Holcomb said: “No, John, I have.got a bad hand; I won’t fight you,” and held up his hand. Skaggs then said, “I am going to whip you anyway,” and hit at the appellant. A fight ensued in which they both engaged and the knife wound was inflicted.

In submitting the issue of self-defense, the exercise of that right was restrict-; ed to defending against real or apparent attack from Skaggs which put the appellant in peril of losing his life or suffering serious bodily injury. An exception was reserved to this phase of the charge, and a special charge upon, the subject was presented and refused. The appellant insists that inasmuch as there was evidence that he had been assaulted by Skaggs, even though he exhibited no arms or deadly weapons, he had the right to repel the attack by such force as was necessary to protect his person; that this right existed although the assault upon him was not such as to put him in fear of losing his life or suffering serious bodily injury This is understood to be correct. The jury might have believed that the appellant was assaulted by Skaggs but that nothing occurred justifying an apprehension upon the part of the appellant of death or serious bodily injury. According to the testimony, Skaggs expressed the intention of whipping the appellant. It may have been the conclusion of the jury that whatever was done by Skaggs was in accord with this expressed intention. If such was his intention and the appellant was so impressed, he would still have the right to defend against the attack and use all necessary force to repel it. See Collins v. State, 47 Tex. Cr. R. 115, 81 S. W. 300; Britton v. State, 95 Tex. Cr. R. 209, 253 S. W. 519. If in repelling the attack the force used by the appellant exceeded that which was necessary under the circumstances as viewed from his standpoint, he might have been convicted of some grade of assault; but his right to defend would not have .been limited to the defense against an assault threatening death or serious bodily injury. Schutz v. State (Tex. Cr. App.) 257 S. W. 880. .

State’s counsel concedes that in the particular mentioned the learned trial judge committed error.of such importance as requires a reversal of the judgment of conviction.

Bill No. 5 is not specific. We infer from it, however, that a material witness for the appellant was required to testify that because of evidence given at a former time with reference to the present transaction, the witness was under indictment for perjury. It has been held that it is not competent for the state to bring about an indictment for perjury against a witness who has on a previous occasion in the same case given testimony favorable to the accused and use the indictment as a means of discrediting the witness upon a subsequent trial. This is mentioned in view of another trial. See Bennett v. State, 47 Tex Cr. R. 52, 81 S. W. 30; Cook v. State, 88 Tex. Cr. R. 659, 228 S. W. 213.

The error pointed , out is deemed such as requires a reversal of the judgment, and such is ordered. 
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