
    DICKEY v. STATE.
    (No. 8880.)
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1925.)
    T. Assault and battery <3⅜>67 — Person- attacked by fo"rce may use fore© necessary for protection as viewed from his standpoint.
    ' Person attacked by force may repel with degree of force' necessary for protection as yiewed from his standpoint.
    2. Assault and battery <S=>95 — Whether force used to repel forceful attack was excessive is- for jury.
    •• Whether force used to repel forceful attack was excessive -is ,f or jury.
    .3. Assault and battery <®=»96(3) — Instruction .. on self-defense held reversible error, as being .too restrictive.
    In prosecution for aggravated assault, in--struction on self-defense, limiting accused’s right to .resist- assault to- one threatening death Or- serious bodily, harm, held reversible error, as being too restrictive in view'of evidence.
    4. Criminal law <@=>673 (2) — Exclusion of accused’s appeals to county officials held improperly limited to issue-of. accused’s insan- •• ⅜- - -
    In prosecution for aggravated assault, where lit appeared ,accused"was a feeble man of much -small stature, than prosecuting witness, and that he was adjudged epileptic, evidence of accused’s appeals 'to county attorney and county judge, in their official capacities, to prevent prosecuting witness .from carrying out threats. • held improperly limited to issue -of accused’s insanity.* -
    . Appeal frcnn District. Court, Smith County,; J. R. Warren, Judge.
    ■ -M. G. Dickey was convicted of aggravated assault, and -he appeals.
    Reversed and remanded.
    . .Butler, Price & Maynor, of Tyler, for appellant. -
    - Tom Garrard, State’s Atty.,- and Grover O. . Morris,' Asst. State’s Atty.,' both of Austin, for the State.
   MORROW, P. J.

assault is,the offense; punishment fixed at a fine' of $25i>, and confinement in ⅛⅛ county jail for a period o'f ,12 months. There wap evidence that the appellant whs a feeble man, and much smaller than Miller, the injured party. . A quarrel, over a. debt culminated in an affray in which, the appellant shot .his adversary. .

According to the appellant's testimony he had previously been threatened by Miller, and, on the present occasion, upon being accosted by Miller, appellant sought to avoid him when Miller, wth an oath, said: “I got you this time,” and made a demonstration as if to strike with a knife, at which time the appellant shot him.

In' instructing on the law of self-defense, the court so worded his charge as to limit the appellant’s right to'resist an assault .threatening death or serious bodily harm. To' this a specific objection was urged, 'upon the ground that under the facts the appellant would have a right to defend against an assault of lesser violence. A ' special charge presenting the same theory was requested and refused. Under the facts, it. is beliéved - that the charge was unduly restrictive, -anil that, in response to the exception," it should have been modified. See Maynard v. State (Tex. Cr. App.) 265 S. W. 167; Holcomb v. State (Tex. Cr. App.) 265 S. W. 1039; Collins v. State, 47 Tex. Cr. R. 115, 81 S. W. 300; Britton v. State, 95 Tex. Cr. R. 209, 253 S. W. 519; Schutz v. State, 96 Tex. Cr. R. 287, 257 S. W. 880; Rea v. State, 46 Tex. Cr. R. 453, 80 S. W. 1003; McLendon v. State (Tex. Cr. App.) 66 S. W. 553; Hix v. State, 51 Tex. Cr. R. 431, 102 S. W. 405; Sprinkle v. State, 49 Tex. Cr. R. 224, 91 S. W. 787; Kinslow v. State, 66 Tex. Cr. R. 430, 147 S. W. 249.

We understand that under the law of this ' state one who is attacked- by- force may repel ■with force. - The repelling'force should hot ;be more than is necessary for protection, aá‘ viewed from the standpoint of the accused) . but it is for the jury- to determine whether the force used is excessive, a.nd to. have before -them knowledge of the right to repel ah attack, whatever its nature, in-order that ⅝ may be taken into account in, assessing the punishment or fixing the grade of the offense), if any. See, Britton v. State, 95 Tex. Cr. R. 209, 253 S, W. 519.

.[4] According to the testimony of the county attorney, appellant, some, time before he. shot Miller, came to the witness in, his official' capacity, and related to him that Miller was giving him (appellant) much annoyance; that he wanted no trouble with him; and that he .wanted Miller put under a peace .bond. The. county attorney explained to the, appellant what would be necessary to put oné under a peace bond,.and’ told him that such) a bond would, not keep Miller from, killing him; that ordinarily a peace, bond was worth|. less.

Appéllant also w.eht to'the county judge some three months before the affray in question. According to the- county judge,.'who testified as a witness, appellant said that ; “Miller had cornered him up and threatened to whip him.” •, He said that he could not. fight Miller,‘and wanted the witness to talk to'Miller and ask him not tó bother 'the appellant.

Appellant had been adjudged an epileptic, and the issue of insanity was in the case. The court instructed the jury that the testimony of the county attorney and the county judge could be considered alone upon the issue of insanity. This limitation of the evi-dfence mentioned was made the subject of exception, and we are inclined to the opinion that, in view of the act of the appellant in seeking the officers mentioned in their official capacity, and in endeavoring to procure their interposition to bring about, a peaceful adjustment, after receiving the testimony, it should not have been limited in the manner mentioned. The authorities upon the subject are cited in Medford v. State, 86 Tex. Cr. R. 240, 216 S. W. 175; Watt v. State, 90 Tex. Cr. R. 447, 235 S. W. 889.

For the reasons stated, the judgment is reversed and the cause remanded. 
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