
    KING v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 8, 1911.)
    1. Homicide (§ 310*) — Prosecution — Instruction.
    Where, in a prosecution for assault to murder, defendant’s testimony would only make him guilty of a simple assault, the court should have affirmatively submitted to the jury the question of simple assault.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. § 658; Dec. Dig. § 310.*]
    2. Criminal Law (§ 830*) — Instructions— Request.
    Where, in a prosecution for assault to murder, ^accused requested a special charge, on the rule that, if the jury had any doubt as to whether the assault was aggravated or simple, they should give accused the benefit thereof, the court should have given a proper charge on the subject, where the evidence required it, though the requested charge might not have been properly worded.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 830.*]
    Appeal from District Court, Shelby County; James P. Perkins, Judge.
    Lovard King was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    Tom C. Davis, for appellant. C. E. Lane, Asst. Atty. Gen.,, for the State.
   HARPER, J.

Appellant was indicted by the grand jury, charged with assault to murder. On the trial of the case, the court gave in charge only the law applicable to aggravated assault, and the jury found the defendant guilty of aggravated assault, and assessed his punishment at a fine of $25.

It appears from the record that appellant, prior to the date he was indicted, had pleaded guilty to simple assault, growing out of the same transaction, and paid his fine, and pleaded this in bar of this prosecution. We have carefully read the testimony in this case, with the view of seeing whether or not the issue of simple assault was raised. The state’s witness, Jeff Owens, makes a clear case of aggravated assault, and under his testimony and that of the other witnesses the jury would have been authorized to find defendant guilty of that grade of offense. But the testimony of the defendant, in our opinion, if true, would only make him guilty of a simple assault, and he had the right to have the question submitted to the jury. Pearce v. State, 37 Tex. Cr. R. 643, 40 S. W. 806. The court in his charge did not present affirmatively defendant’s right to be acquitted, if they found under the facts he was guilty only of simple assault.

The defendant asked a special charge, in substance that, defendant having been punished for a simple assault growing out of this transaction, then, if the jury found beyond a reasonable doubt that defendant was guilty of an assault, but had a reasonable doubt as to whether the assault was an aggravated assault, they would acquit The special charge requested may not have been properly worded, yet it called the attention of the court to the law that, if the jury had any doubt as to the degree of assault, whether aggravated or simple assault, the defendant should be given the benefit of the doubt.

Because of the failure of the court to submit affirmatively defendant’s theory of the case, this cause is reversed and remanded.  