
    SCHUTZ v. STATE.
    (No. 7475.)
    (Court of Criminal Appeals of Texas.
    Jan. 9, 1924.)
    1. Homicide <&wkey;>300(3) — Charge on right of self-defense or defense of another held unduly restrictive.
    Where accused was convicted of aggravated assault under indictment for assault with intent to murder, a charge on the right of self-defense and the defense of another, limiting the exercise thereof to repelling an assault threatening death and serious bodily injury, was erroneous as incomplete and overrestrietive, where there was evidence that accused- had reasonable ground to apprehend an assault by the prosecuting witness, but no reasonable ground to apprehend that such assault would be deadly, since, in such event, accused would have had the right to defend against the threatened assault, although not to defend by using any weapon.
    2. Homicide <&wkey;10@ — The right of self-defense applies to any unlawful attack.
    The right of self-defense applies to any unlawful attack.
    3. Homicide &wkey;>l87 — Elements considered to determine-grade of offense and extent of punishment when self-defense is pleaded.
    The nature of the assault against which self-defense is made and the means used, as well as the character of the resistance made, are matters to be considered by the jury in determining the grade of the defense, if any, and the extent of the punishment.
    Appeal from District Court, Bastrop County; R. J. Alexander, Judge.
    Ben Schütz was convicted of aggravated assault, and he appeals.
    Reversed and remanded.'
    J. H. Powell and Page & Jones, all of Bas-trop, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Upon an indictment charging assault with intent to murder, the appellant was convicted of aggravated assault; punishment fixed at confinement in the county jail for a period of 12 months and a fine in the sum of $500.

The indictment contains four counts. The 'first charges an assault upon Martin Belto with the intent to murder him'; the second, a like assault upon Thurman Taylor; the third, an assault with intent to murder both Taylor and Belto; and the fourth, an assault, to murder Taylor and the stabbing of Belto by accident or mistake. After tbe conclusion of tbe evidence, tbe court instructed tbe jury to ignore tbe second and third counts and left for tbeir consideration tbe first and fourth counts.

It seems that Belto, Taylor, tbe appellant, and bis brother, Arthur Schütz, were present at a dance; that a quarrel took place, which was followed by an encounter in which Martin Belto received several knife wounds, some of which were of a serious nature. There is evidence that both Arthur Schütz and the appellant took part; that the quarrel was with Taylor, at least in its inception. Touching just what occurred during the affray, the evidence is somewhat contradictory and confusing, but is sufficient to show that both Arthur Schütz and the appellant inflicted knife wounds ¡upon Belto. There is also evidence that before any blows were struck, either by the appellant or his brother, Arthur Schütz, Taylor, while engaged in the wordy altercation preceding the affray, made exclamations to Arthur Schütz, threatening to cut him, and accompanied such threats by a demonstration as if he was going to draw something from his pocket; that the appellant rush in and pushed certain people away, struck Taylor with his fist, and also followed him as he ran out of the room.

There was evidence of a conversation to the effect that Belto was in possession of a knife belonging to Arthur Schütz or claimed by him. The evidence also suggests that Belto interposed in the conflict between Arthur Schütz and Taylor. No evidence that either Taylor or Belto was armed has been discerned.

The court instructed the jury to the effect that if appellant individually, using a deadly weapon, cut Belto with the specific intent to kill him, his offense would be an assault to murder; also to the effect that if he, acting alone or as principal with Arthur Schütz, while making an assault upon Thurman Taylor, with a deadly weapon and with the intent to kill Taylor, he (appellant), by accident or mistake, wounded Belto, the offense would be an assault to murder. In separate paragraphs the jury was instructed that if the assault was made by appellant on Belto intentionally or accidentally while assaulting Taylor and was not made with a deadly weapon and without the intent to kill either Belto or Taylor, the offense would be aggravated assault.

On the issue of self-defense, the instruction given was in substance that if appellant inflicted injury on Belto by mistake or accident while endeavoring to strike Taylor, at a time when Taylor had made a demonstration as if to draw a weapon, or by his acts or words manifested an intention to make an attack on the appellant or Arthur Schütz and inflict death or serious bodily injury on each or either of them, there should be an acquittal.

So far as they went, no substantial reason for objecting to the instructions given is perceived. The jury, however, might have believed that the acts and words of Taylor were such as to produce in the mind of the appellant the reasonable apprehension of an assault by Taylor on the appellant or his brother, -but might not have found that it was Taylor’s intent to kill or seriously injure the appellant or his brother, and that there was no reasonable ground to apprehend a deadly assault. In such event, the appellant would have had the right to defend against the threatened assault, but might not have been justified in using the weapon used or any weapon. In other words, appellant might have been deemed by the jury right in assaulting Taylor or in encouraging his brother to do so, but wrong in the means used and the extent to which the assault was pursued. Under such conditions, his offense might have been reduced to the grade of simple assault. There appears but little testimony to show what kind of an attack Taylor was about to make. The weapon, if any, for which he was reaching, is not described. The testimony that he threatened an attack on Arthur Schütz is definite, but its nature is left in doubt. Under these conditions, the charge on the right of self-defense and the defense of another is incomplete and over-restrictive, in that it limits the exercise of such right in repelling an assault threatening death or serious bodily injury.

With uniformity, the decisions of this court affirm that the right of self-defense applies to any unlawful attack. See Britton v. State (Tex. Cr. App.) 253 S. W. 519, and cases collated. The nature of the assault against which the defense is made and the means used, as well as the character of the resistance 'made, are matters to be considered by the jury in determining the grade of the offense, if any, and the extent of the punishment.

For the reason stated, the judgment is reversed, and tlfe cause remanded. 
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