
    WEDDINGTON v. STATE.
    (No. 9753.)
    (Court of Criminal Appeals of Texas.
    Jan. 27, 1926.
    Rehearing Granted Jan. 12, 1927.)
    1. Assault and battery <§=o92 — Conviction for aggravated assault on woman in defendant’s office held sustained by evidence.
    In prosecution for aggravated assault on woman in defendant’s office, evidence held sufficient to sustain verdict, where state’s evidence showed defendant struck prosecuting witness without provocation.
    2. Criminal law <©==>1086(14) — Refusal of special charges not showing presentation before main charge not considered in absence of bill or signed exception to charge given.
    Special charges, requested and) refused, ■cannot be considered on appeal in absence of bills of exception or signed exception to court’s, charge, where special charges did- not show they were presented to court before main charge was read to jury.
    On Motion for Rehearing.
    3. Assault and battery <S=96(2) — In prosecution for aggravated assault, refusal of instructions that defendant had right to use necessary force to remove prosecutrix, if she called his wife vile names, held error.
    In prosecution for aggravated assault, where evidence tended to show that prosecu-tris, while in defendant’s office, had cursed and abused defendant’s wife in his presence, refusal of requested instructions submitting theory that defendant had right to use necessary force to remove prosecutrix held error.
    Commissioners’ Decision.
    Appeal from Tarrant County Court at Law; P. W. Seward, Judge.
    J. T. Weddington was convicted of an aggravated assault, and he appeals.
    Reversed and remanded.
    McLean, Scott & Sayers and W. W. Alcorn, all of Fort Worth, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is an aggravated assault, and the punishment is a fine of $250.

The evidence, while greatly conflicting, is entirely sufficient to support the verdict of the jury in the event they believe the state’s testimony. There are no bills of exception contained in the record. There is what is termed defendant’s exception to the charge of the court, but this is not signed by the trial court, and in n& way shows that it was ever called to his attention. Defendant’s special charges 1 and 2 are contained in the record, but do not show that they were presented to the court before his main charge was read to the jury. They are simply designated special charges 1 and 2 offered by the defendant, and are marked “refused” and “signed” by the trial judge, and show that defendant excepted.- It is necessary that the record show in some manner that a special charge was offered and refused by the trial judge before his main charge was read to the jury. In the absence of showing to this effect, they will not be considered on appeal. Archbell v. State, 97 Tex. Cr. R. 337, 260 S. W. 867; Crane v. State, 91 Tex. Cr. R. 304, 240 S. W. 920; Cecil v. State, 92 Tex. Cr. R. 359, 243 S. W. 988.

Finding no error in the record, the judgment is in all things affirmed.

On Motion for Rehearing.

BETHEA, J.

The appellant was convicted of an aggravated-assault, and his punishment assessed at a fine of $250.

At a -former term this ease was affirmed. Appellant in due time filed his motion for rehearing, and asked for a writ of certiorari to perfect the record. The case will now be considered on the record as perfected.

The evidence shows that prosecutrix and her husband and her mother went to the office of appellant, and while there she was assaulted by appellant. The theory of the state' was that this was done without any provocation on the part of the prosecutrix, and that appellant struck 'her, bruising her body and tearing her clothes considerably. The theory of the appellant was that the prosecutrix, together with her mother and her husband, came to his office, and entered into a heated discussion with him and his wife; that, while in his office, prosecutrix cursed and abused the wife of appellant, applying to her opprobrious epithets, calling her, among other things, a “God-damned whore”; that he attempted to remove her from his office, but was prevented from doing so by the husband of the prosecutrix, who was the son of appellant; that he never struck the prosecutrix or inflicted upon her any injury whatever. Appellant contended that he had a right to use such force as was necessary to remove her from his office or place of business.

The learned trial judge failed to present to the jury in his main charge appellant’s defensive theories in the case; the charge was excepted to for this omission; and the appellant requested an affirmative presentation of these theories as shown by his special charges 1 and 2, both of which were refused, as appears from bills of exceptions 1 and 2. The issues of fact should have been passed on by the jury under proper instructions from the court. These issues were embraced in both of appellant’s special charges requested and refused. Savage v. State, 92 Tex. Cr. R. 520, 244 S. W. 1002.

For the error of the trial court in not giving appellant’s special charges Nos. 1 and 2, both of which presented clearly and affirmatively appellant’s defensive theories, the motion for rehearing is granted, and the judgment is 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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