
    KELTON v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    1. Assault and Battery (§ 96) — Criminal Prosecution — Self- Defense.
    In a prosecution for assault, the evidence tended to show that the wife of accused asked him for money to visit her relatives, and was told that he did not have the money, but would have it for her by June 1st; that she became angry and struck Mm on the head with a bucket, afterwards running up to him and biting his shoulder, when he reached down and got a rock and struck hack over his shoulder, hitting her on the head and making a small cut. Held, that an instruction that accused would be entitled to defend himself against the assault, although he should use no more force tha.n was necessary, was erroneous, as unduly limiting his right of self-defense.
    [Ed. Note — Eor other eases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.]
    2. Assault and Batteby (§ 67) — Self-Defense — Assault by a Woman.
    One assaulted by a woman, even though his wife, has the same right of self-defense as in case of assault by any one else.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 96, 97; Dec. Dig. § 67.]
    3. Assault and Batteby (§ 91) — Prosecution — Sufficiency of Evidence.
    Evidence held not to sustain a judgment of conviction for assaulting accused’s wife.
    [Ed. Note. — For other eases, see Assault and Battery, Cent. Dig. § 136; Dec. Dig. § 91.]
    Appeal from Ellis County Court; J. C. Lumpkins, Judge.
    Ed Kelton was convicted of assaulting his wife, and appeals.
    ^Reversed and remanded.
    Clyde F. Winn, of Waxahachie, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No, Series & Rep’r Indexes
    
   DAVIDSON, J.

Appellant was convicted of an assault on his wife, and fined $25. His wife, the assaulted party, did not appear at the trial. The state introduced a witness who testified that immediately after the difficulty, or within five minutes, he had a conversation with the defendant in regard to the trouble between himself and his wife, and that appellant, in substance, stated that his wife asked him for money with which to visit her relatives. He informed her that he did not have the money, but would have it by the 1st of June, and would then furnish it to her. She became very angry, and struck him on the head with a bucket. After doing this she ran upon him and began biting him on the shoulder. He reached down and got a rock, which was used to keep the door open, and struck back over his left shoulder with it, hitting her on the head. There was a small cut on her head produced by the blow. This ended the trouble, and this is the state’s case. Appellant took the stand in Ms own behalf and testified as did the previous witness. He also stated that prior to his wife’s demand for money, she requested that she and her husband should leave the place where they were working. This he declined to do because he had entered into a contract to do the work. She then demanded the money to go and visit her relatives, which he states he was unable to give her, but stated he would do so about the 1st of June. He then testified that after striking him over the head she began biting him on the shoulder, and he reached down and got the rock and struck back over his shoulder, inflicting the wound on her head. It seems to be uncontroverted that this was the difficulty as it occurred, and tha't the wound was a slight wound.

The court charged the jury with reference to self-defense that appellant would be entitled to defend himself against the attack, although he should use no more force than was necessary. Objection was urged to this limitation to the right of self-defense under the facts. We believe this exception was well taken. However, beyond this, we are of opinion the state has not made out a case which would justify this conviction. While the assault upon a woman usually is aggravated assault, this does not deprive a party of his right of self-defense against an assault. His right, to defend himself against the attack ■ of a woman, or against his wife, under these circumstances would be the same as her right of self-defense against him or against any other person. As the case is presented by the record and the evidence from both sides, this conviction ought not to have been secured.

The judgment is reversed, and the cause is remanded.  