
    YARBOROUGH v. STATE.
    (Court of Criminal Appeals of Texas.
    April 24, 1912.)
    1. Assault and Battery (§ 92) — Prosecution— Sufficiency of Evidence.
    Evidence in a prosecution for aggravated assault held sufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 137-139; Dec. Dig. § 92.]
    2. Assault and Battery (§ 67 j — Defenses -Self-Defense.
    Where one wrongfully goes on the premises of another to take his property without warrant of law, he cannot in a prosecution for an assault growing out of the other’s resistance claim to have been acting in self-defense.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 96, 97; Dec. Dig. § 67.] •3. Assault and Battery (§ 69) — Defenses —Defense of Property.
    An assault committed by one in possession of property who resists its taking without warrant of law, using no more force than is necessary, is justifiable.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 99-101; Dec. Dig. § ■69.]
    4. Assault and Battery (§ 96) — Prosecution— Instructions — Conformity to Issues.
    Where the evidence in a prosecution for aggravated assault does not permit the defendant to claim to have been acting in self-defense, the refusal to submit that issue is proper.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.]
    5. Assault and Battery (§ 96) — Prosecution — Instructions — Affirmative Defense.
    In a prosecution for aggravated assault where there was evidence that one from whom defendant attempted to take personal property without due process of law picked up a scale beam and made as if to strike, and that defendant wrenched it from her hands without assaulting her, a failure to give defendant’s affirmative charge that if all he did was to take the scale beam from her to prevent her striking his son with it, he would not be guilty of •an assault, together with the striking out of an instruction, language to the effect that if defendant did not assault such person, but only ■disarmed her without intent to injure her, he should be acquitted, so as to create the impression that the mere taking of the scale beam from her would make him guilty of assault, was reversible error.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; ■ Dec. Dig. § 96.]
    Appeal from Pantola County Court; W. R. Anderson, Judge.
    J. W. Yarborough was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    H. N. Nelson, 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.

This is a companion case to that of Ely Yarborough, this day decided, and appellant was found guilty and his punishment assessed at a fine of $350.

Appellant was landlord of J. R. Thrash,. and, after being informed by the justice of the peace he had no right to take the cotton of his tenant without process, he took his wagons, and himself, his son, and a negro went to the home of Mr. Thrash and by force loaded the cotton on his wagons. When he arrived on the premises, Mr. Thrash requested him not to take the cotton, and, when Mr. Thrash demanded what right they had to take the cotton, one of them presented a gun and said, “These will take the cotton, old man, and if necessary take you too.” Mr. Thrash went in the house and got his gun and started back out to where appellant had two wagons, but Mrs. Thrash prevented him from going. Mrs. Thrash and her daughter then went to where appellant was loading the cotton, and she and her daughter say that appellant assaulted the daughter, Miss Ethel, while his son assaulted Mrs. Thrash.

The state’s evidence amply supports the verdict, and appellant could not claim to have been acting in self-defense, as he was wrongfully on the premises, and was engaged in an illegal act — taking another’s property without warrant of law — and if Mrs. Thrash and her daughter had used force to prevent them from taking the property, and used no more force than was necessary, they would have been justifiable in law.

Consequently the court, under the evidence, did not err in refusing to submit the issue of self-defense.

However, appellant in his testimony says that Miss Ethel Thrash picked up a scale beam and drew it back as if to strike, and he caught it and wrenched it from her hands, and that he did not assault her, and did no other act. As hereinbefore stated, appellant was wrongfully on the premises and engaged in an illegal act, but this would not make him guilty of an aggravated assault on Miss Thrash, if in fact he did not assault her, which issue he presents by his testimony. Generally speaking, a charge on presumption of innocence and reasonable doubt would he all that was necessary to give, especially if no special charge was requested. But where all the evidence shows that one charged with a specific offense is guilty of wrongful conduct, and perhaps some offense against the law, and the defendant asks a special charge in regard to the offense for which he is then being tried, presenting affirmatively his defense to that offense, it should be given. In this case appellant requested the court to charge the jury that, if all appellant did was to take the scale beam from Miss Ethel to prevent her striking his son with it, he would not be guilty of an assault.

Appellant reserved an exception to the failure of the court to give this charge, and presents the question in his motion for a new trial. To emphasize this matter, the court had written in his charge which was given to the jury: “If you believe from the evidence that defendant did not assault Ethel Thrash as alleged, and did nothing more then disarm her of a scale beam, with no intent to injure her, you will acquit him”— and then struck it out by drawing lines across this part, but leaving it so it could be plainly deciphered by the jury. If the jury read this, as they doubtless would if they read the charge, and, seeing the court had first inserted it and then struck it out, it would and doubtless did create the impression on their mind that if appellant took the scale beam from her, and did nothing else, this would make him guilty of an assault. In the way this was presented, we think it is error for which this case should be reversed. Consequently it is unnecessary to pass on the action of the court in overruling the application for a continuance in this case. The other matters present no error.

Reversed and remanded.  