
    LANGHAM v. STATE.
    (No. 9302.)
    (Court of Criminal Appeals of Texas.
    June 26, 1925.)
    Criminal law &wkey;s772(6) — Refusal of charge that defendant was not guilty of aggravated assault if pedestrian ran into- automobile held reversible error.
    Where there was testimony that pedestrian ran into defendant’s automobile, it was reversible error to refuse requested charge that, if pedestrian ran into automobile and was injured thereby, there could be no conviction of offense of aggravated assault by striking pedestrian with motor. vehicle.
    Commissioners’ Decision.
    Appeal from Lee County Court; Wm. O. Bowers, Jr., Judge. ,
    Bred Langham was convicted of an aggravated assault, and he appeals.
    'Reversed and remanded.
    E. T. Simmang, Jr., of Tientsin, China, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty.,. both of Austin, for the State.
   BERRY, J.

The appellant was convicted in the county court of Lee county for the offense of an aggravated assault, and his punishment assessed at a fine of $25.

The information charges the commission of an aggravated assault by willfully and with gross negligence colliding with and causing serious bodily injury to Odine Shaffer upon a public highway situated in the town of 'Lexington, by striking the said Odine Shaffer with a motor vehicle.

The state’s testimony shows that the appellant drove his ear at a very rapid rate of speed between cars parked on each side of the road while people were crossing the road coming out of church at the time the accident occurred, and the injured party was struck -and thrown over the end of the car driven by the appellant.

On the contrary, the defendant, by at least one of his witnesses, proved that defendant was driving along slowly, and that the injured party was running fast and looking back, and emerged from between the double line of parked cars at a point just about even with the middle of defendant’s front wheel; that as soon as the- injured party appeared the appellant threw his car to the left to avoid hitting the boy, and that the boy ran into the rear wheel about the hub of the wheel and fell right there. The witness further testified: “Fred Langham did not run into this boy, but the boy ran into Fred Lang-ham.”

The only complaint that appellant makes which we deem serious is the one wherein he claims that the court should have given his special charge No. 4, which was as follows:

“I- instruct you that if you believe from the evidence that the injured person, Odine Shaffer, was injured by the defendant while the defendant was operating an automobile upon the street of Lexington, but you should further find that at the time the said Odine Shaffer ran into the said automobile and was thereby injured, or if you have a reasonable doubt on this point, then I instruct you that the defendant cannot be convicted of any offense; and if you so find you must return a verdict of not guilty.”

Various other special charges were offered embodying this principle, and timely objections were made to the court’s failure to include this defense in his main charge to the jury. We think, under the testimony above noted, the appellant was entitled to have this defense presented in an affirmative charge, and that, by reason of the court’s failure to so present it, the court committed reversible-error.

Various other errors are alleged by' appellant, but these we do not deem it necessary to discuss. For the error of the court in failing to charge on appellant’s affirmative defense, it is our opinion that the judgment should be 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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