
    CLARK v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 8, 1911.)
    1.Assault and Battery (§ 96*) — Triai^-In-structions — Mutual Assault.
    An instruction, in a prosecution for aggravated assault, that, if such assault was mutual, then the defendant would be guilty as charged, without submitting the other questions of fact as to what constitutes an assault, is reversible error.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.*]
    2. Assault and Battery (§ 54*) — Aggravated Assault — Deadly Weapons.
    To make the throwing of hot coffee upon a person an aggravated assault, it must have been done so as to make it a deadly weapon, or it must have inflicted serious bodily injury.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. 75-78; Dec. Dig. § 54.*]
    3. Assault and Battery (§ 96*) — Trial—Instructions — Aggravated Assault.
    An instruction, in a prosecution for aggravated assault, that violence used by one person to another does not amount to an assault, when committed by accident or in self-defense, and. that if the assaulted party had a razor, and was about to cut the defendant when defendant threw hot coffee upon her, the defendant would be justified under the law of self-defense, unless there was a mutual combat, without submitting , the issue as to whether the coffee was thrown so as to make it a deadly weapon, or whether it inflicted serious bodily injury, is reversible error.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.*]
    Appeal from Titus County Court; W. E. Riddle, Judge.
    Myrtle Clark was convicted of aggravated assault, and she appeals.
    Reversed and remanded.
    Rolston & Ward, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

By complaint and information it was charged against appellant that on or about July 20, 1910, with force and arms, she did commit an aggravated assault upon Mattie Cobb with hot coffee, by throwing it on Mattie Cobb, it being, in the manner used, a deadly weapon, and that it did inflict serious bodily injury upon Mattie Cobb. The jury found her guilty of aggravated assault, and gave her the lowest penalty, a fine of $25.

The court made several fatal mistakes in charging the jury, which necessitates the reversal of this case. The first is that.he charged, in just so many words, that if the jury believe beyond a reasonable doubt that said assault, if any, was mutual, then the defendant would be guilty as charged, and “you will find her guilty.” If the evidence justified a charge on mutual assault, which we doubt, then the court should not have charged that the appellant would be guilty of even a simple assault, without submitting to the jury the other questions of fact which made it an assault.

Again, the court charged, as a matter of law, that “throwing hot coffee by one person upon another would be an aggravated assault.” This is not the law; but, as charged in the complaint and information, in order to make it an aggravated assault, the throwing of the hot coffee must have been done in such a manner as to make it a deadly weapon, or it must have' inflicted serious bodily injury. Neither of these facts were submitted by the court in this conneetion. in this charge. Nor does the court in any other charge submit these questions of fact, or either of them, for its finding. This was necessary in this case.

In another portion of the charge the jury is told that violence used to the person of another does not amount to an assault or battery, when committed by accident or in self-defense, and then submits that if the jury believed the assaulted party had a razor, and was about to cut the defendant therewith at the time the coffee was thrown, then the defendant would be justified under the law of self-defense, unless they believed the same was by mutual combat and then the defendant would be guilty. This portion of the charge should have submitted to the jury, instead of charging straight out that the defendant. would be guilty as a matter of law, that if the coffee was thrown in such a manner and under such circumstances as to make it a deadly weapon, or if it inflicted serious bodily injury upon the assaulted party, requiring a finding of facts by the jury, before she should be found guilty.

It is unnecessary to further discuss the charge. From what we have stated above, the court in another trial can properly submit the questions at issue. There is no other question raised necessary to be discussed. The Assistant Attorney General insists that the charge of the court in the particulars mentioned is essentially wrong, and necessarily requires a reversal of this case.

For the errors above pointed out in the charge, the judgment will be reversed, and the cause remanded.  