
    MAYS v. STATE.
    (No. 7221.)
    (Court of Criminal Appeals of Texas.
    Nov. 22, 1922.)
    1. Assault and battery &wkey;j8'8 — Refusal to admit testimony of threats against accused1 not erroneous where no attempt to carry them out shown.
    In a prosecution for aggravated assault, the refusal of testimony of the husband of accused that prosecuting witness stated in his presence and in that of his wife that she would kill accused and another was not erroneous where it was not shown that there was any demonstration or act on the part of prosecuting witness which led up to the attack upon her, resulting in the assault.
    2. Assault and battery &wkey;>85 — Reputation of one assaulted as dangerous.immaterial where no act shown necessitating self-defense.
    In a prosecution for aggravated assault, rejection of evidence to prove the reputation of prosecuting witness to be that of a dangerous woman was not erroneous, in the absence of a showing of some demonstration or attack upon accused by prosecuting witness, necessitating self-defense.
    3. Assault and battery <5&wkey;96(3) — Refusal of requested instruction on seif-defense not error where accused shown aggressor.
    In a prosecution for an aggravated assault, where prosecuting witness was cut by accused with a razor, who, after being thus assaulted, picked up an axe and pursued accused, but did not overtake her, a requested instruction by accused on the law of self-defense was properly refused.
    «Ste^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    Myrtle Mays was convicted of aggravated assault, and she appeals.
    Affirmed.
    Mays & Mays and F. M. Chaney, all. of Fort Worth, for appellant.'
    W. A. Keeling, Atty. Gen., and C. D.'Stone, Asst. Atty. Gen., for the State.
   LATTTMORE, J.

Appellant was convicted in the criminal district court of Tarrant county of aggravated assault, and her punishment fixed at a fine of $250 and two years in the county-jail.

From the evidence it appears that' a group of negro women, among whom was prosecuting witness, were discussing various matters, and that said prosecuting witness used language unprintable. Appellant suddenly came from her house, which was not far distant, holding one of her hands under her apron. Some words passed between her and prosecuting witness, and appellant produced a black-handled razor and proceeded to inflict serious injuries upon the person of said prosecuting witness. After a number of cuts, and slashes had been made with the razor by appellant, the prosecuting witness broke away, and ran for an axe which lay near by, whereupon appellant took to her, heels. Some of the witnesses indicate that prosecuting witness secured the axe and pursued appellant, but never overtook her.

Appellant did not testify, and introduced as witnesses only her husband and one other witness, neither of whom was present as an eyewitness to the difficulty. Appellant’s sister, the other witness referred to, testified that she saw the prosecutrix pursuing appellant with an axe, and heard her say that she would kill appellant. This, however, seems to have been after prosecutrix had been cut with the razor, as above stated.

Appellant’s bill of exceptions No. 2 complains of the trial court’s refusal to permit her husband to testify that the' prosecuting witness stated in his presence, and that of his wife, that she would kill appellant and -another girl. Threats made by the injured party only become material when there is evidence sustaining the proposition that the assault changed was in the necessary self-defense of the accused, or it becomes material to determine who began the difficulty. An examination of the statement of facts discloses no testimony of any demonstration or act qn the part of the prosecuting witness which led up to or caused the attack upon her 'by appellant with said razor. In this state of the record the rejection of evidence of threats was not erroneous.

By two bills of exception appellant complains that she was not allowed to prove the reputation of the prosecuting witness as being that of a dangerous woman. Such reputation becomes material in this case only as affecting the question of some demonstration on the part of prosecuting witness which might have caused the action of the appellant upon which the offense in question is predicated. The record disclosing no demonstration or attack by the prosecuting witness upon appellant, in defense of which appellant acted, the evidence as to the reputation of prosecuting witness would become immaterial. An examination of one of said bills makes it appear that appellant wished to prove the bad reputation of said witness in order to account for the fact that she carried the razor with her out to the place where the difficulty occurred, but in our opinion such testimony. would afford no justification for such carrying or the attack made by appellant upon prosecuting witness.

We are unable to detect anything in the record upon which to base the special charge upon the law of self-defense, the refusal of which is also complained of. There is nothing in the testimony which shows any use or attempted use of an axe by prosecuting witness until after she had been cut by the razor in the hands of appellant. Her subsequent use of the axe would be attributed to her own right of self-defense, and could in no event serve as an excuse for any claim of self-defense on the part of appellant; and it is likewise true that a charge submitting the law with reference to threats has no place in the trial of one accused of any grade of assault unless there be some testimony of an effort on the part of the injured party to carry out such threat. There ■\Vas no such evidence introduced on the instant trial, and the special charge on the law of threats was properly refused.

Rinding no error in the record, the judgment of the trial court will be affirmed.  