
    W. H. (Bill) Rawlings v. State.
    No. 26,130.
    January 14, 1953.
    
      John D. Glass, Tyler, for appellant.
    
      George P. Blackburn, State’s Attorney, Austin, for the state.
   MORRISON, Judge.

The offense is aggravated assault; the punishment, a fine of $500.00.

The grounds of aggravation plead and proved herein grew out of the fact that the appellant was an adult male and the person struck was a female. No serious bodily injury was alleged or proven.

The defense interposed was that of self-defense.

The court in his charge instructed the jury, in part, as follows:

“But if you believe, from the evidence, that the Defendant W. H. (Bill) Rawlings used more force than was necessary to effectuate his self defense, then such assault becomes unjustifiable and you will find the defendant guilty.”

Appellant objected to such charge.

It is apparent therefrom that the court authorized a conviction upon a finding that the accused had used excessive force. Such was not an issue in the case.

We think appellant’s objection was well taken, and the court fell into error in not responding thereto.

Judgment is reversed and the cause remanded.  