
    HODGES v. STATE.
    (No. 3093.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.)
    1. Assault and Battery (§ 54) — Offenses— Aggravated Assault.
    Under Pen. Code 1895, art. 601, subd. 9, defining an aggravated assault as an assault, the assault must be committed with a fixed purpose, and not upon a rash impulse, though the length of time is immaterial if a fixed purpose appears, and the real injury inflicted is not material, except as it may tend to show that the means were calculated to inflict serious bodily injury.
    [Ed. Note. — Eor other cases, see Assault and Battery, Cent. Dig. §§ 75-78; Dec. Dig. 54.]
    2. Criminal Law (§ 1173) — Appeal—Harmless Error.
    In a prosecution under Pen. Code 1895, .art. 601, subd. 9, for aggravated assault, where both simple and aggravated assault were submitted, a failure to instruct upon the reasonable doubt in favor of defendant as between the two degrees, while of itself not error, was reversible error, where, had it been given, error in failing to give defendant’s request that, if the difficulty arose from provocation arising at the time, he would not be guilty of aggravated assault would have been cured.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3164-3168; Dec. Dig. § 1173.]
    3. Criminal Law (§ 706) — 1Trial—Misconduct of State’s Attorney.
    In a prosecution in a prohibition county, the action of the prosecutor in asking each of defendant’s witnesses if they had not been drinking that day, and if they had not drunk with defendant, and, though they denied it, failing to follow it up by affirmative testimony, was improper as an effort to prejudice the jury against defendant and some of his material witnesses.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1661; Dec. Dig. § 706.]
    4. Assault and Battery (§ 92) — Admissibility of Evidence — Conduct of Defendant.
    Evidence as to whether defendant had a bottle of whisky in his store that day, or had in fact taken a drink or two that day, without any contention that the assault occurred in the store,_ or that he was intoxicated at the time, was inadmissible.
    [Ed. Note. — For other eases, see Assault and Battery, Cent. Dig. §§ 137-139; Dec. Dig. § 92.]
    5. Criminal Law (§ 1169) — Admission of , Evidence.
    In a prosecution for assault in a prohibition county, error in the admission of evidence as to defendant’s possession of whisky, and as to whether or not he had been drinking, was prejudicial.
    •[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    6. Assault and Battery (§ 92) — Admissibility of Evidence — Assault by Another Person.
    In a prosecution for aggravated assault, that another person struck the person alleged to have been assaulted by defendant was immaterial, unless it was expected to show an acting together in the assault.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 137-139; Dec. Dig. § 92.]
    Appeal from Collingsworth County Court; R. H. Cocke, Jr., Judge.
    D. H. Hodges was convicted of an aggravated assault, and he appeals.
    Reversed and remanded.
    Templeton & Templeton, of Wellington, W. F. Ramsey and C. L. Black, both of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

. Appellant was prosecuted for committing an aggravated assault under subdivision 9 of árdele 601, Pen. Code 1895; the indictment charging that the assault was committed with “premeditated design- and by the use of means calculated to inflict serious bodily injury.” It is thus seen that, to constitute this offense under this provision of the Code, two things must combine: First, the assault must be committed upon “premeditated design”; that is, from a fixed purpose formed in the mind, and not upon a rash, inconsiderate impulse. It is true, the length of time is immaterial if the evidence shows a formed and fixed purpose and design. And, second, the assault under such circumstances must be committed by means calculated to inflict serious bodily injury. The real injury inflicted is not so material, except in so far as it may tend to show that the means used were calculated and perhaps did inflict serious bodily injury. While the court submitted both simple and aggravated! assault, yet he did not in the charge instruct the jury as regards the reasonable doubt in favor of defendant as between the two degrees;- and while a failure to do this would not present error in and of itself alone, yet if he had so done, the error in failing to give appellant’s special charge,in which he requested the court to charge the jury that, if the difficulty between appellant and Mr. Howell arose over provocation arising at the time, the defendant would not be guilty of an aggravated assault. The testimony offered in behalf of defendant raised the issue that he went to the place where Mr. Howell and -another were engaged in a fight, not knowing who they were, and, when he approached, Mr. Howell accused him of inciting the fight between himself and Watkins, and the fight between appellant and the prosecuting witness grew out of this matter — a sudden quarrel, ill feeling already existing between them, and a fight with no premeditation. It is true that the state’s evidence would sustain a finding that the assault was premeditated, and in a measure deliberate; yet, the issue being in the case, the court should have in some way clearly instructed the jury the distinguishing features between aggravated and simple assault under the section of law upon which the prosecution was based.

As the case will be reversed, we will not discuss the testimony further than to say that the testimony is sufficient to sustain aggravated assault, if the jury should so find upon a fair submission of the issues; but we do not think the court should have permitted state's counsel to ask each witness for the defendant if they had not been drinking that day, and if they had not drunk with appellant. If the state had proposed to follow it up with testimony that they had drunk with appellant, when they 'denied it, and it was on account of their friendly relations with appellant they were testifying as they did, as affecting their credit, it might be admissible. Yet after asking these questions and eliciting that they had taken a few drinks that day, a matter with which appellant was in no way connected, and then ask them if they had not drunk with appellant, and, when denied, pursue it no further, would ■ incline one to the opinion that it was but an effort to prejudice a jury, in a prohibition county, against appellant and some of his material witnesses.

Again we cannot see as to what issue in the case it was material as to whether or not appellant had a bottle of whisky in his store that day, as the fight did not take place in the store, nor near it; nor how it was material as to whether appellant had in fact taken a drink or two that day. It is not contended that he was intoxicated at the time of the fight, nor so drunk he could not intelligently detail what occurred, nor that this fight grew out of or was about the drinking of any whisky. Appellant contends that all this testimony was calculated to prejudice the jury against him, and, from the amount of the punishment assessed, it seems that this, or some other circumstance not disclosed by this record, did cause them to assess a most unusual punishment for this character of offense, a fine of $750. As under the facts in this case this testimony was inadmissible, and may have contributed to the punishment fixed, we cannot say it was harmless error, and on another trial it will not be admitted, unless the state expects in some way to connect it up with the transaction for which appellant is on trial. There are several bills relating to this matter, but we do not deem it necessary to discuss each of them.

It is useless to discuss the motion for a continuance, as appellant will have ample time to secure the attendance of the witnesses upon another trial.

The fact that another person struck Mr. Howell would be immaterial, unless it is expected by circumstantial evidence or otherwise to show an acting together between the parties. Appellant would not be responsible for the acts of the third person, not named in the record, unless the law would make them principals in the assault. If it was intended to show that áppellant did not inflict the injuries on the head, it might be admissible for that purpose; but appellant offered none of this testimony, and under the evidence before us it was inadmissible on behalf of the state, and the objections of appellant should have been sustained, and on another trial it will be excluded-; unless the state expects to show that the parties were acting together in the assault on Mr. Howell.

We do not deem it necessary to discuss the other bills, as the matters herein ruled upon sufficiently applies the law to them, and on another trial the court will be governed thereby.

The judgment is reversed, and the cause remanded.  