
    No. 2642.
    J. H. Leonard v. The State.
    Aggravated Assault ahd Battery—Fact Case.—A husband has the right to defend himself against an assault committed upon him by his •wife, and, unless he employs greater force than is necessary to repel the violence of his wife, he can not be held guilty of an assault and battery. See the opinion for the substance of evidence held insufficient to support a conviction for aggravated assault and battery by a husband on his wife.
    
      Opinion delivered February 2, 1889.
    Appeal from, the County Court of Houston, Tried below before W, A. Davis, County Judge,
    The conviction was for aggravated assault and battery, and the penalty assessed against the appellant was a fine of twenty-five dollars.
    The opinion summarizes the evidence in the case.
    
      W. A. Stewarts for the appellant.
    
      W. L, Davidsons Assistant Attorney General, for the State,
   Hurt, Judge.

Appellant was convicted of an aggravated assault and battery upon his wife. Mary Riley, step-daughter of defendant, states that she and defendant were in the field, about one hundred yards from the .defendants house; that defendant was whipping her with a switch; that, while being whipped, her mother came running down to them, appearing to be very angry. Defendant told her to leave and not interfere with him, but she refused and defendant and Mrs. Leonard got together; that she saw him strike her twice with the switch,

Mrs. Leonard states “that she went down to the field where defendant was; that she was very angry; that she has quite a high temper—hard for her to control. Defendant asked her to go to the house and she refused; that she struck defendant; did not know whether he struck her or not; that he did not hurt her if he struck her.”

How there may not be much gallantry or chivalry in repelling with force assaults made by the wife, still, at law, a husband has the right to defend himself even against attacks of his wife; and unless greater force is used than is necessary to repel the violence, he would not be guilty of an assault or battery, In this case the wife was the aggressor, it not being shown that appellant was in the wrong in chastising the girl, and the force used by him was vary slight indeed.

We are of opinion that the facts fail to show an assault or battery; that the force used was to repel the violence used upon. him by the wife, and was not greater than was necessary.

Reversed and remanded.  