
    KNOX v. STATE.
    (No. 3147.)
    (Court of Criminal Appeals of Texas.
    May 27, 1914.)
    Assault and BatteRy (§ 96) — Aggravated Assault — Self-Defense—Instructions.
    An instruction that, if when the defendant assaulted prosecutor, it reasonably appeared to defendant that he was in danger of some serious bodily injury from an attack then being made, or about to be made on him by prosecutor, and that defendant used no greater force than was necessary to prevent such attack, he would be justifiable was erroneous as placing on defendant the burden of proving that he acted in self-defense, and as submitting to the jury whether defendant used greater force than necessary, as it appeared to them at the time of the trial, instead of as it reasonably appeared to defendant at the time of the assault.
    [Ed. Note. — Eor other cases, see Assault and Battery, Cent. Dig. §'§ 142-150; Dec. Dig. § 96.]
    Appeal from Denton County Court; S. H. Hoskins, Judge.
    A. H. Knox was convicted of aggravated assault, and lie appeals.
    Reversed and remanded.
    Sullivan & Hill and Luther Hoffman, all of Denton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted of aggravated assault, and his punishment assessed at a fine of $450.

The only assignment we deem necessary to notice is the one complaining of the court’s charge in submitting the issue of self-defense, the court instructing the jury:

“If you find and believe from the evidence that at the time the defendant assaulted the prosecuting witness Rhine it reasonably appeared to defendant that he was in danger of some serious bodily injury from an attack then being made, or about to be made, by the witness Rhine, and that he used no greater force than was necessary to prevent such attack, he would be justifiable.”

A charge, worded as is this one, has been held to shift the burden of proof, and place on the defendant the burden- of proving that he acted in self-defense, when the rule is, he is entitled to the reasonable doubt on this issue, as well as other issues in the case.

Again, the court in his charge would have the jury pass on the' question of “greater force than necessary” as it appeared to them at the time of the trial, when- they should have been instructed to view the matter as it reasonably appeared to defendant at the time. Vinson v. State, 55 Tex. Cr. R. 493, 117 S. W. 846.

The judgment is reversed, and the cause remanded.  