
    HOECKER v. STATE.
    (No. 3958.)
    (Court of Criminal Appeals of Texas.
    Feb. 16, 1916.)
    1. Homicide <$=>310—Assault to Murder-Instructions—Evidence.
    Where the evidence upon an indictment for assault with intent to murder showed that the assaulted party and another by consent engaged in a fist fight, that the assaulted party knocked the other party doWn and showed an intention to inflict further injury on him, when defendant and others interfered, that the assaulted party when it was all over had been cut with some instrument, that he accused defendant of cutting him, and that defendant went into it as a friend of the party first assaulted, a charge of assault with intent to murder was justified.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 657-661; Dec. Dig. <©=310.]
    2. Homicide <©=307 — Aggravated Assault— Instructions — Evidence.
    On such evidence, a charge on aggravated assault was properly submitted.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 638-641; Dec. Dig. <®=307.]
    3. Homicide <©=305 — Principals — Instructions — Evidence.
    On such evidence, a charge on principals was properly submitted.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 637; Dec. Dig. <§=305.]
    4. Homicide <©=301 — Aggravated Assault— Instructions.
    In such ease where the party assaulted had himself assaulted another party and where it was claimed that defendant came to the rescue of such other party, instructions on assault to murder and aggravated assault, not stating that defendant might defend not only himself, but the party first assaulted under the rule of self-defense, were erroneous.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 624, 633; Dec. Dig. <©=301.]
    5. Homicide <©=301 — Aggravated Assault-Instructions.
    On the evidence under such indictment, an instruction that although the jury believed that the complaining witness was assaulted by some one and that defendant made or assisted in the assault, was erroneous, in failing to state affirmatively that if defendant interfered solely to separate them, he was guilty of no offense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 624, 633; Dee. Dig. <®=301.]
    6. Homicide <©=303 — Instructions—Principals.
    On the evidence under such indictment, a charge that in passing on defendant’s guilt it must be considered from his standpoint alone and measured by the .intent which he acted on, and not by the intent of any other person, unless defendant knew of such intent and acted thereon, but failing to charge that if the offense was committed by another, and defendant did not know of such other unlawful intent and did not aid' therein, he would not be a principal, was erroneous.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 637; Dec. Dig. <©=305.]
    7. Homicide <©=301 — Aggravated Assault-Instructions — Sele-Deeense.
    On evidence under such indictment, the defendant was entitled to a charge that any person other than the party about to be injured might by necessary means prevent the commission of the offense and use the same force in preventing injury as the person about to be injured, and that if the person assaulted was then attacked or about to attack another and defendant interfered to prevent such an attack, he might use all the force necessary to prevent such an attack.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 624, 633; Dec. Dig. <©=301.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Edgar Hoecker was convicted of aggravated assault and battery, and he appeals.
    Re-yersed and remanded.
    Chambers & Watson, of San Antonio, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Under • an indictment charging assault with intent to murder appellant was allotted a fine of ?350 by the verdict of the jury under a conviction of aggravated assault and battery.

The confusion brought about by the facts incidental to and a part of this transaction leaves the case with several issues. The court submitted to the jury assault to murder and aggravated assault, and also gave a charge on principals. The state’s case justified the charge given by the court, so far as the issues are concerned.

Briefly stated, it was shown by the prosecution that Ackerman, the assaulted party, and Semlinger had a short conversation in regard to the fact that Ackerman had accused Semlinger of whistling at his (Acker-man’s) sisters at a dance two weeks prior to the occasion of this trouble. Upon the invitation of' Semlinger, Ackerman went outside of the house where the social function was in progress into the yard, and, it seems, undertook to engage in a personal difficulty there, but for some reason they went out farther into the road and engaged in a personal combat. Ackerman knocked Sem-linger down and gave some evidence of the fact that he intended to inflict further injury upon Semlinger, who was lying on his back on account of the blow from Ackerman. This was a fist fight.. At this stage of the proceeding several parties, including defendant, interfered. The fight stopped, and Ackerman, when it was all over, had been cut with a knife or razor or some instrument by some one of the parties. Ackerman testifies that defendant cut him, and that one of the others kicked him in the stomach, and two of them got him by the head and bumped his head against the ground. The theory of the state further was that these parties being friends of Semlinger, they went into it of- their own volition and engaged in the fight, and upon this theory the court submitted the law of principals, on the theory that possibly these parties acted together in the trouble which resulted in the cutting or stabbing of Acker-man.

In the court’s charge upon aggravated assault and assault to murder — and we-are dealing now with aggravated assault, because that is the offense of which appellant was convicted — the court limited the law of self-defense to that of an attack upon matters producing reasonable expectation or fear of death or serious bodily harm. There was no theory in this case, as we understand it, that the injured party had made any attack on defendant. The attack he made was in knocking Semlinger down, and if appellant was connected with the difficulty in any •way, it was by reason of tbe fact that he attacked Ackerman because of that, and that he was in the conspiracy with Semlinger to bring on the difficulty. That was the state’s theory, and, of course, the court should have submitted the state’s theory, but the jury should have been told in submitting the defense of assault to murder and aggravated assault, in its limitation as to self-defense, that he had a right to defend not only himself, but to defend the other man under the law of self-defense, if that question was raised. Appellant had not been attacked by Ackerman, but 'Semlinger had been, and one of the theories was that defendant came to the rescue of Semlinger, and not himself. The charge in this respect was wrong, and an exception was reserved to it. Countercharges were asked on other questions, which were refused after exception had been reserved.

Among other things, the court’s charge is criticized under proper exception that it failed to charge affirmatively the defense of the defendant in that he interfered solely for the purpose of separating Ernest Ackerman and Paul Semlinger, and failed to tell the jury that in such event the defendant would be guilty of no offense, and because the court in his charge on principals failed to tell the jury that if an offense was committed by another and defendant did not know the unlawful intent of the other, and did not aid or encourage, he would not be a principal. We think this exception to the charge was well taken under the facts, and, without repeating the charge in full as asked by the defendant, which was refused, it embodied this idea, that although the jury should believe from the evidence that Ackerman was assaulted by some one at the time and place alleged in the indictment, and that the defendant made or assisted another or others in making such assault, in passing upon his guilt or innocence, it must be viewed from his standpoint alone, and his culpability must be measured by the intent with which he acted, and not from or by the intent of any other person, unless he knew of such intent on the part of the other person and acquiesced therein and acted upon it.

He further asked the charge, which was refused, that any person other than the party about to be injured may, by the use of necessary means, prevent the commission of the offense, and may use the same force and resort to the same means in repelling the aggression and preventing the injury as the person about to be injured; and he further asked the court to instruct the jury if they should find from the evidence that at the time Ackerman was cut and injured he was then attacking or about to attack or injure Paul Semlinger, and the defendant interfered to prevent such attack or injury, he would have the right under the law to use all the force necessary to prevent such injury or attack; and if they should so find from the evidence or have a reasonable doubt thereof, the defendant should be acquitted. These charges, we think, under the facts introduced, should have been given. The state’s theory, of course, was given, and ought to. have been given, to the effect that if the defendant and Semlinger acting together brought about this difficulty, or he was aiding Semlinger in bringing on the difficulty which resulted in the cutting or stabbing of Ackerman, he would be guilty as a principal; but if he interfered as a peacemaker to prevent further fighting, he should be acquitted; or if he came upon the scene and as he viewed it at the time Ackerman had knocked Semlinger down and was in the act of jumping on him and beating him, and he acted for the purpose of relieving .the situation, Ackerman being a much larger man than Semlinger, he was entitled under the law to use all necessary force to prevent the injury to Semlinger, the same as if Ackerman had attacked the defendant. These matters were raised by the evidence pertinently, and should have been given in charge to the jury.

Por these reasons, the judgment is reversed, and the cause remanded. 
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