
    REYNOLDS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 21, 1911.
    Rehearing Denied Oct. 11, 1911.)
    1. Criminal Law (§ 1137) — Appeal—Party Entitled to Allege Error.
    Accused cannot ask a reversal on appeal in a misdemeanor case because of the charge on self-defense, where the charge requested by him on that theory was given.
    • [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dec. Dig. § 1137.]
    2. Criminal Law (§ 1056) — Appeal—Presentation Below — Instructions.
    The appellate court will not review an-instruction in a misdemeanor case, unless it was excepted to at trial and special instructions on the subject requested.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §-§ 2668, 2670; Dec. Dig. § 1056.]
    3. Criminal Law (§ 453) — Evidence—Opinion Evidence.
    A witness, who had been well acquainted for a number of years with two persons, and who testified that she recognized their voices and heard what they said in a certain conversation-, although she did not see them, could testify as to such conversation; the fact that she did not identify them by sight only going to the weight of her testimony.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1043; Dee. Dig. § 453.]
    4. Assault and Battery (§ 91) — Prosecution — Sufficiency of Evidence.
    Evidence in a prosecution for assault and battery held to sustain a conviction.
    [Ed. Note. — Eor other cases, see Assault and Battery, Dec. Dig. § 91.]
    Appeal from Somervell County Court; J, G. Adams, Judge.
    George W. Reynolds was convicted of assault, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted for making an assault on Rube Strickland, and upon a trial his punishment was assessed at a fine of $5.

It appears that Rube Strickland rented a tract of land for the year 1910 from W. P. Moss, with the privilege of buying it. During the year appellant purchased the land from Moss, and during the rental year, without the consent — in fact, against the will — of Strickland, entered on the land to do some clearing. Mrs. Strickland approached him and told him to get off the place. Appellant did not do so, but told her to send her husband to talk to him. Thus far there is no conflict in the testimony, but from here on there is a sharp conflict. The state’s testimony would show that when Rube Strickland appeared he said to appellant, “Get out of there,” when appellant replied: “Come put us out. Come on and we will shoot it out.” At this time, after some cursing, Strickland fired two shots from a target rifle. Ap'pel-lant took after Strickland with a sumac stick, hit him with it, and knocked him down; then got on him and struck him several times. This all took place inside the inclosure rented by Strickland.

Defendant’s testimony would show that when Strickland Appeared on the scene he was mad, and cursing, and shot at appellant’s son, then shot at appellant, and started to again load the target rifle, when appellant run him, caught up with him, and struck him with the stick, and, upon Strickland falling, appellant got on him and struck him several times with his fist, but quit when Strickland said he had enough.

If appellant had not been in the wrong in going in the inclosure without the consent and against the will of Strickland, we would be loathe to let this conviction stand on the evidence; but, in as much 'as he had been requested not to go in there until the end of the rental year, he had no right, even though he was the owner of the land by recent purchase, to invade the premises without the consent of the tenant, and his doing so under the circumstances was with the knowledge that trouble would likely ensué, and he cannot claim to be free from blame.

While appellant complains of the court’s charge on self-defense, yet the charge requested by him on this theory was given by the court, and, this being a misdemeanor, no such error' is presented as should cause a reversal of the judgment.

There are some exceptions reservad to other portions of the charge, but no instructions were requested in regard thereto.

In misdemeanor cases, unless the charge is excepted to and special instructions in regard thereto as may be desired are requested) this court on appeal will not revise the charge. Dunbar v. State, 34 Tex. Cr. R. 596, 31 S. W. 401, and cases there cited; Downey v. State, 33 Tex. Cr. R. 380, 26 S. W. 627; Garner v. State, 28 Tex. App. 562, 13 S. W. 1004; Loyd v. State, 19 Tex. App. 321.

Nor was there error in admitting the testimony of Mrs. Ard. She testified she heard the voices, was well acquainted with appellant and Strickland, and had been so for a number of years; and talked with each, of them, and she recognized their voices' and heard what was said. Although not seeing them, she would swear positively it was them doing the talking, an.d from her knowledge of the men and their voices she believed it was them talking, when the court permitted her to. detail the language she heard. The objection might go to the weight to be given this testimony, but would not render it inadmissible.

As stated in the beginning of this opinion, if appellant by his conduct was not the primary cause of the difficulty, by going into premises under another’s control against Ms will, the facts attendant upon the difficulty-might justify his course at that time. But both men appear to have been “carrying a chip on their shoulders,” and both entered willingly into the difficulty.

The judgment is affirmed.  