
    FAUBIAN v. STATE.
    (No. 4924.)
    (Court of Criminal Appeals of Texas.
    April 10, 1918.
    On Motion for Rehearing, May 29, 1918.)
    1. Homicide <&wkey; 120 — Assault to Murder— Self-Defense.
    In a prosecution for assault to murder, where prosecuting witness was doing no act which, viewed from defendant’s standpoint, manifested any intention of doing him harm, the issue of self-defense was not raised, though prosecuting witness had previously struck defendant with his fist, after which he retreated.
    2. Homicide &wkey;>120 — Self-Defense —Pursuit — Guilt of Assault.
    Where prosecuting witness struck defendant on the head with his fist, but when defendant drew his pistol retreated, and was fired at by defendant after he had got some distance up the street, and after he had gotten into an automobile and started away, defendant was guilty of an assault.
    3. Homicide <&wkey;166(3) — Evidence—Motive.
    In a prosecution for assault to murder, resulting in conviction of aggravated assault, if the state had been able to prove that defendant had been named as corespondent in a divorce petition which the assaulted person had filed against his wife, the fact would not have been admissible in the absence of circumstances bringing it to defendant’s knowledge.
    4. Criminal Law <&wkey;>706, 1170%(5) — Conduct of Prosecuting Attorney — Examination of Accused — Question Tending to Prejudice.
    Where there was no evidence that defendant had maintained improper relations with the assaulted person’s wife, and there was no evidence that defendant was named in the assaulted person’s divorce proceedings against her, the state’s question to defendant as to whether he had been named in the divorce petition as corespondent or the cause of separation by reason of his association with the assaulted person’s wife was improper and prejudicial.
    5. Homicide <&wkey;340(2) — Appeal — Prejudicial Error.
    The state’s improper question to defendant as to his being named as corespondent in the assaulted person’s divorce petition against his wife, and the instruction on self-defense, in the absence of evidence that defendant provoked the difficulty, were prejudicial error calling for new trial.
    On Motion for Rehearing.
    B. Criminal Law >&wkey;730(3) — Improper Conduct of Attorney — Duty of Court.
    In a prosecution for assault to murder, resulting in conviction of aggravated assault, if the state was within its rights in asking defendant as a witness whether he had been named as corespondent in the assaulted person’s divorce petition, the trial court should have corrected the injurious effect of such question by withdrawing it from the jury on request.
    Appeal from District Court, McLennan County; J. W. Taylor, Jr., Special Judge.
    Clyde Fauhian was convicted of aggravated assault, and he appeals.
    Reversed.
    Jno. B. McNamara, Co. Atty., and D. C. Woods, Asst. Co. Atty., both of Waco, and E. B. Hendricks, Asst. Atty. Gen.,. for th'e State.
   MORROW, J.

Appellant was indicted for assault with intent to murder on one Garrett, convicted of aggravated assault, and his punishment fixed at a fine of $400.

Appellant owed Garrett an account. Garrett had met him some two weeks before the difficulty, and demanded payment. On the occasion of the difficulty appellant had started to his place of business with a hammer in his hand, and was invited by one of the witnesses to ride to town in his car. The witness told appellant he was going to get gasoline at Garrett’s garage, stopped his car for that purpose, and asked appellant to get .out so the tank which was under the seat might be filled. One of Garrett’s employés was attending to the gasoline, and Garrett, who was in the rear of the building, came out and began a conversation with appellant about the account, demanding payment in quite peremptory language, and, as state’s witnesses described it, in a very earnest manner. Appellant said that he had no money to pay the account, and, further, that the account was not right, and demanded of Garrett that he take his hands out of his pockets. Garrett struck appellant a blow on the head with his fist and cut a gash about half an inch long and about one-eighth inch deep, which bled and which appellant says dazed him. About the time the blow was struck appellant drew his pistol, state’s witnesses claiming he was drawing at the time he was struck. I-Ie made an effort to shoot Garrett, who dodged around the car, and appellant was warned by a witness not to shoot Garrett, as he was unarmed. Garrett finally ran and was fired at by appellant twice, once after he had got some distance up the street and again after he had gotten into an automobile and started away.

The court charged the jury on assault to murder, aggravated assault, self-defense, adequate cause, and provoking the difficulty. We do not think the issue of provoking the difficulty was raised by the evidence. There are several assignments criticizing the charge of the court and the special charge given at th'e request of the state.

• At the time the shots were fired Garrett was not only retreating, but was doing so hurriedly, and had reached a point some distance from appellant at the time the first shot was fired, and had increased the distance and was fleeing from him in an automobile at the time the second shot was fired.

It is evident from all the testimony, including that of appellant, that at the time the shots were fired deceaséd was doing no act which, viewed from appellant’s standpoint, manifested any intention of doing Mm harm, and in our opinion the issue of self-defense was not raised. Lynch v. State, 24 Tex. App. 350, 6 S. W. 190, 5 Am. St. Rep. 888; Hinton v. State, 24 Tex. App. 450; Bush v. State, 40 Tex. Cr. R. 543, 51 S. W. 238; Branch’s Cr. Law, § 462.

It was apparent that appellant was guilty of an assault, the grade and amount of punishment to be determined by the jury.

While appellant was testifying as a witness counsel for the state was permitted, over objection, to ask him if he had not been named in a divorce petition, which the prosecuting witness, Garrett, had filed against his wife, as the corespondent or cause of said separation, by reason of his familiarities and associations with the prosecutor’s wife. The appellant answered this question in the negative. It appears from the prosecuting witness’ testimony that he had nothing against appellant; that he did not like him, and it seems clear that at the time the difficulty began appellant’s presence at the place was incidental to his riding to town with the witness Mayfield; that the meeting* was brought about by Garrett; and that his conduct was aggressive and his language insulting. There was no evidence that appellant had maintained improper relations toward the wife of Garrett, nor was there any evidence that in the divorce proceedings appellant was named. It tended to put appellant in a bad light before the jury and if the state had been able to prove the fact it would not, under the circumstances, have been admissible, in the absence of some circumstances bringing it to appellant’s knowledge. Darnell v. State, 58 Tex. Cr. R. 585, 126 S. W. 1122; Daniels v. State, 71 Tex. Cr. R. 061, 160 S. W. 707. The action of the prosecuting attorney in asking the question was prejudicial to the appellant, and the court was in error in permitting it, and not instructing the jury to disregard it. Vick v. State, 71 Tex. Cr. R. 50, 159 S. W. 50; Hodges v. State, 73 Tex. Cr. R. 378, 166 S. W. 512; Vernon’s C. C. P. p. 395, and cases cited.

While the issue of self-defense was not in the ease, the fact that the court, in the absence of evidence that appellant provoked the difficulty, instructed the jury on that subject was calculated to indicate to the jury that in the mind of the court there was evidence that appellant was in the wrong from the beginning. This, together with the improper question mentioned above, was prejudicial to the appellant, and may have been an element in enhancing the punishment assessed. Because of them we believe the court should have granted a new trial, and his failure to do so will require a reversal of the judgment of the lower court, which is ordered.

PRENDERGAST, J., absent.

On Motion for Rehearing.

MORROW, J.

Responding to the very earnest and carefully prepared motion for rehearing filed by state’s counsel, we have reexamined the questions passed upon, hut are unable to reach the conclusion that a proper disposition of the case was not made. The suggestion by state’s counsel that the facts present an issue of self-defense cannot be sustained. There is evidence that Garrett assaulted appellant,’ and evidence that his conduct was such as to justify the conclusion, from appellant’s standpoint, that Garrett was about to assault appellant at the time he drew his pistol. The shots were not fired by appellant then, and were not fired until after - Garrett had manifestly abandoned any effort to continue the assault upon appellant, or to get into a position to renew it. As presented by the record, that the shots were fired after Garrett had abandoned any assault that he had made we think is manifest. Bordeaux v. State, 58 Tex. Cr. R. 61, 124 S. W. 640.

The charge authorizing the jury to pass upon the issue of provoking the difficulty is without support in the facts.

The suggestion that it was permissible for state’s counsel to ask appellant if he had not been named by Garrett, the prosecuting witness, in a divorce petition as the cause of the separation between Garrett and his wife on the issue of motive we think is not sustained under the facts of the case. Whether appellant had been so named was a fact of which the state’s counsel manifestly had knowledge before he asked the question. When he asked appellant if he had not been so named appellant replied in the negative. This reply was accepted without controversy. It, therefore, appears from the record here that appellant had not been so named. The right of counsel to make inquiries to ascertain the truth is unquestioned, but his right to ask questions suggesting the existence of facts which tend to reflect upon the accused, when in truth the facts do not exist, rests upon a quite different basis. Bullington v. State, 78 Tex. Cr. R. 187, 180 S. W. 679. Granting, however, that counsel for the state was well within his rights in asking the question mentioned, it is clear that the trial court should have corrected, as far as possible, its injurious effect by withdrawing it from the jury on request. Instances of reversals because there was put before the jury suggestions as to the existence of damaging facts by questions are to be found in the cases of Baines v. State, 43 Tex. Cr. R. 490, 66 S. W. 847, and Wyatt v. State, 58 Tex. Cr. R. 115, 124 S. W. 929, 137 Am. St. Rep. 926. Other cases on the subject will be found collated in 2 Vernon’s Crim. Stats. p. 906, note 43.

The motion for rehearing is overruled. 
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