
    SCOTT V. STATE.
    (No. 10027.)
    (Court of Criminal Appeals of Texas.
    May 19, 1926.)
    1. Assault and battery <&wkey;43 (6) — Instruction as to defendant’s right to defend himself from all real or apparent danger and use all force necessary held erroneous, as not applying law of self-defense to faots nor presenting it affirmatively.
    In trial for aggravated assault, charge that-from defendant’s standpoint he had right to defend himself from all real or apparent danger and use all force necessary, and that if jury believed from evidence beyond reasonable doubt that assault was committed in defense of his own person they should acquit him, held, erroneous, as not applying law of self-defense to facts nor presenting it in affirmative way.
    2. Criminal law <&wkey;778(5), -1172(2) — Charge permitting acquittal on ground of self-defense only if jury believed beyond reasonable doubt that assault was committed in defense of defendant’s own person held prejudicial error.
    Instruction permitting acquittal on ground of self-defense only if jury believed from evidence beyond reasonable doubt that assault was committed by defendant in defense of his own person held erroneous and prejudicial.
    Commissioners’ Decision.
    Appeal from Wichita County Court at Daw; O. M. McFarland, Judge.
    J. N. Scott was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    Mathis &i Caldwell, of Wichita Falls, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Ryles, Asst. State’s Atty., of ■ Groesbeek, for the Sta'te.
   BERRY, J.

The offense is an aggravated assault and the punishment a fine of $50 and 90 days in jail.

The evidence from the standpoint of the state is sufficient to support the verdict, but that for the appellant is entirely sufficient to raise the issue of self-defense, .and the court, recognizing this fact, attempted to submit this defense to the jury. In attempting to do so, however, same was submitted only in the following charge:

“You are further charged that, viewed from the defendant’s standpoint, that he had a right to defend himself from any and all danger, real or apparent, and had a right to use all such force necessary to protect himself from such danger, whether said danger was real or apparent, and in determining whether he was in any danger, real or apparent, you shall view the testimony from the defendant’s standpoint; if you find and believe from the evidence beyond a reasonable doubt that an assault was committed by the defendant in defense of his- own person, it will be your duty to acquit the defendant and so say by your ver-dict.” . '

Appellant leveled practically every objection conceivable at the charge as given, and in addition thereto offered a special charge correctly submitting the law of self-defense. His objections to the charge were overruled, and his special charge was refused. We think .it clear from the charge given that it does not apply the law of self-defense to the facts in this case, and it does not present to the jury in an affirmative way the law of self-defense. In addition to these objections it is clear from the charge that before the jury was permitted to acquit on the ground of self-defense it required them to believe from the evidence beyond a reasonable doubt that an assault was committed-by the defendant in defense of his own person. The charge was clearly err oneous and prejudicial. Winn v. State, 54 Tex. Cr. R. 538, 113 S. W. 918; Hanks v. State, 99 Tex. Cr. R. 218, 269 S. W. 106; Vega v. State (Tex. Cr. App.) 276 S. W. 1104; Singleton v. State, 86 Tex. Cr. R. 401, 216 S. W. 1094; Lyons v. State, 71 Tex. Cr. R. 189, 159 S. W. 1072; Black v. State, 65 Tex. Cr. R. 336, 145 S. W. 944; Swain v. State, 48 Tex. Cr. R. 98, 86 S. W. 335; Jones v. State, 96 Tex. Cr. R. 332, 257 S. W. 895; Garcia v. State, 101 Tex. Cr. R. 55, 273 S. W. 857.

Eor the error in the court’s charge on self-defense, the judgment must be reversed and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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