
    DUNNAWAY v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    Assault and Battery (§ 67) — Self-Defense —Evidence.
    K., who had previously shot defendant, entered a store where defendant and some friends were and threw a glass at defendant, striking him in the face. Defendant drew a pistol and struck K. over the head twice, when the difficulty was stopped by friends. Held that, K. having begun the difficulty, defendant used no more force in repelling the assault than an ordinary prudent man would have done under the same circumstances, and his act was justifiable.
    [Ed. Note. — Eor other cases, see Assault and Battery, Cent. Dig. §§ 96, 97; Dec. Dig. § 67.]
    Appeal from Harris County Court, at Law; Clark C. Wren, Judge.
    J. D. Dunnaway was convicted of assault, and he appeals.
    Reversed and remanded.
    Heidingsfelders, of Houston, 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
    
   HARPER, J.

Appellant was prosecuted and convicted of making an assault on Oscar Kennley. Mr. Kennley was not introduced as a witness, but the testimony shows a former difficulty between the two men, when Kennley shot and seriously wounded appellant. On this occasion it is shown appellant went into a drug store with some friends to get a cool drink. While at the counter, Kennley threw a glass at him, striking him in the face, when appellant drew a pistol and struck Kennley over the head twice. Friends interfered and stopped the difficulty. This is the staters case. Appellant’s case is that, when Kennley threw the glass and struck appellant in the face, he then reached in his pocket as if to draw a weapon, and appellant says, having been shot by Kennley on a former occasion, he thought his life was in danger, and he drew his pistol and struck deceased. That he did not shoot because of the crowd in the drug store. It is manifest by all the witnesses that Kennley began the difficulty and struck appellant in the face with the glass, and under such circumstances we do not think the evidence will justify appellant’s conviction. He used no more force in repelling the assault than any ordinary man would have done.

Reversed and remanded.  