
    W. S. JONES vs. THE STATE.
    COURT OF APPEALS,
    AUSTIN TERM, 1882.
    
      Assault — Husband and Wife — Conflicting Testimony. — In the prosecution of a husband for an assault upon his wife, the defendant had the same right to repel the attacks of the wife the same as if she had been a man, and to use sufficient force and not more, to overcome the force employed against him.
    The weight of testimony and credibility of witnesses are questons within: the peculiar province of the jury, and if there be testimony to support, the verdict it will not be disturbed on account of conflicting testimony
    Appeal from Cooke county.
   Opinion by

Winkler, J.

Agreeably to the testimony, the appellant and his wife-in the early morning, got into an angry contest over a pan used for mixing up dough for making bread. The husband entered the kitchen in advance of the wife and had possession of the pan when the wife, the alleged assaulted party, entered the kitchen and endeavored to take the pan from the appellant, defendant. A scuffle ensued, in which the wife succeeded in getting possession of the pan. The jury were instructed among other things, in effect, that the defendant had the same Tight to repel the attacks of his wife the same as if she had been a man, and that unless he used greater force than was •necessary to overcome the force employed against him the should find him not guilty.

There was a conflict in the testimony.- The testimony on -the part of the State, if true, showed enough to sustain the verdict, whilst that offered on the part of the defendant tended strongly to prove a good defense.

There was testimony offered to impeach the statements of the prosecuting witness, and some in her support. The weight of the testimony and the credibility of the witnesses ■was properly submitted to the jury for their determination. This was the peculiar province and duty of the jury. They having decided the case in favor of the witnesses for the" ¡prosecution their verdict must stand. We have no legal right to disturb a judgment when the evidence is conflicting and there is testimony to support the verdict. The judgment .must be affirmed.  