
    CORLEY v. STATE.
    (Court of Criminal Appeals of Texas.
    March 19, 1913.)
    1. Assault and Battery (§ 67) — Mutual Combat.
    If accused invited prosecuting witness out of a store to engage in a fight, self-defense could not be set up in a prosecution for aggravated assault, the rules of mutual combat being applicable; but if the difficulty started by accused pulling a knife when the other knocked his hat off, whereupon he walked out of the store at the proprietor’s request, followed by prosecuting witness, accused’s right of self-defense would not be abridged.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 96, 97; Dec. Dig. § 67.]
    2. Criminal Law (§ 814) —Instructions— Issues.
    Where the evidence did not raise the issue of excessive force in a prosecution for aggravated assault, it was error to charge thereon.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    3. Criminal Law (§ 404) — Admission or Evidence — Clothing.
    It was error, in a prosecution for aggravated assault, to permit the injured person’s bloody coat to be admitted in evidence; the fact of the cutting and the location of the wound not being disputed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dec. Dig. § 404.]
    Appeal from Scurry County Court; Fritz R. Smith, Judge.
    Oliver Corley was convicted of aggravated assault, and appeals.
    Reversed and remanded.
    Higgins, Hamilton & Taylor, of Snyder, for appellant. G. E. Lane, Asst. Atty. Gen., for tbe State.
    
      
      Eor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of an aggravated assault, and bis punishment assessed at a fine of $40.

In view of tbe disposition of tbe case, we do not deem it necessary to pass on tbe question of tbe action of tbe court in overruling tbe application for continuance. However, we will state that as tbe witnesses named were present at tbe difficulty, and it was a serious question in tbe case whether or not appellant invited tbe injured party out of tbe bouse, we are of the opinion the continuance ought to have been granted. If appellant invited Charley Creighton out of tbe store to engage in a fight, the difficulty would come under tbe rules of law applicable to mutual combat, and self-defense would not be presented. If, however, as contended by him, when Creighton knocked defendant’s bat off, be pulled his knife, and at the request of the proprietor of tbe store be walked out of tbe store, and was followed by Creighton, then bis right of self-defense would not be abridged.

Tbe court, in bis charge on self-defense, instructed tbe jury that if appellant used more force than was necessary in defending himself be would not be justified in cutting deceased. This was duly excepted to and a special charge presented; tbe failure to give same being also excepted to. Tbe issue of excessive force was not presented by the evidence, and the court erred in charging thereon. Under tbe evidence tbe issue of mutual combat was presented, and if tbe jury believed tbe state’s theory tbe only question would be whether or not appellant was guilty of an aggravated or simple assault. Tbe appellant denied inviting Creighton out of' the bouse, but said, when be started out of tbe bouse, be was followed by Creighton, who attacked him. If this is true, his right of self-defense should not he abridged or limited by any charge on excessive force; for there is no evidence raising this issue.

Again, the court permitted Creighton’s bloody coat to be introduced in evidence. That appellant cut Creighton was not a disputed issue, the location of the wound was not questioned, the clothing would serve no useful purpose in illustrating any issue in the case, and the court erred in admitting the coat in evidence. This error was further emphasized by the private prosecutor, in his closing address, pulling off his own coat and putting on the coat with holes in it, wearing it while addressing the jury. If, on another trial, the evidence for the state is the same as on this trial, and the admission is made by appellant that he made on this trial, the coat should not be admitted.

The judgment is reversed, and the cause is remanded.  