
    PONDER v. STATE.
    (Court of Criminal Appeals of Texas.
    March 26, 1913.)
    1. Assault and Battery (§ 83)—-Evidence-Admissibility.
    On a trial for aggravated assault, the testimony of the prosecuting witness, that before leaving a hotel just prior to the difficulty he placed a pistol in his pocket on.account of information received, from the clerk of the hotel that accused was there to see him, was improperly admitted, since accused was not chargeable with what occurred between third parties not in his presence, and such testimony was calculated to convey to the jury the idea that accused was there for the purpose of provoking a difficulty, and that the prosecuting. witness armed himself to defend himself against an anticipated attack.
    [Ed.- Note.—For other cases, see Assault and Battery, 'Cent. Dig. §§ 128, 134; Dec. Dig. § 83.]
    2. Criminal Daw (§ 508)—Testimony of Ac- . complices—Admissibility.
    Under the statutory provision that persons charged as principals, accessories, or accomplices in the same or different indictments cannot testify for each other, a person charged jointly with accused with an assault, who had been arrested and bound over to await the action of the grand jury, but had not been indicted, could testify in behalf of accused, although it was anticipated that the grand jury which had adjourned would be recalled during the same term.
    _ [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1099-1123; Dec. Dig. § 508.]
    3. Assault and Battery (§ 96)—Instruc-tions— Self-Defense.
    On a- trial for aggravated assault, where accused testified that the prosecuting witness repeated his former statements concerning accused, and then commenced to shoot, if the prosecuting witness’ testimony that accused during the conversation struck him with his fist justified a charge as to accused provoking the difficulty, the court should have charged the converse of such proposition that if he did not provoke the difficulty, and the prosecuting witness was the attacking party, accused’s right of self-defense would not be affected.
    [Ed. Note.—For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.]
    Appeal from District Court, Hopkins County ; R. L. Porter, Judge.
    John Ponder was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    Crosby, Hamilton & Harrell and Dinsmore, McMahan & Dinsmore, all of Greenville, and O. E. Sheppard, of Sulphur Springs, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For otlier eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of aggravated assault.

The court permitted the witness and assaulted party, Taylor, to testify: That a few moments before the difficulty he got his pistol out of his grip at the hotel and put it in his pocket. This was just before he went out of the door of the hotel. After going out of the hotel appellant called him. They went to one side and had a conversation. That he put his pistol in his pocket on account of information he had received from the clerk of the hotel. The clerk’s name was Williams. This was claimed to be information conveyed to him by Williams that appellant was there to see Taylor. In connection with this, the state’s contention was that the defendant and Bob Jennings went to the hotel where the alleged assaulted party, Taylor, was stopping for the purpose of having a difficulty with him, and that, after calling him to one side, appellant made an assault upon Taylor; the indictment charging that assault to be with intent to murder. Appellant’s theory of the case was that he went to the hotel to see Taylor, and Jennings went with him; that he was there to ask an explanation of Taylor in regard to certain statements which he had been informed Taylor had been making about him (the defendant) in regard to either he (appellant) or his oil mill, with which he was connected, had been wronging and defrauding and cheating his customers out of their cotton seed by means of false weights. The state’s theory was that appellant called Taylor to one side and provoked a difficulty with him. Appellant’s theory was that he went to Taylor to ask why he was talking as he had been informed he was talking, and to seek an explanation, and not to have a difficulty, and that Taylor shot at him with a pistol, and then shot Jennings. The testimony was inadmissible. Appellant knew nothing of the fact that Taylor was armed, or that Williams had informed him of the fact that appellant was there. This testimony conveyed the idea, and was intended to convey the idea, to the minds of the jury that by means of this conversation between Williams and Taylor appellant was there for the purpose of provoking a difficulty, and therefore Taylor armed himself to defend himself against an anticipated attack by defendant. As before stated, this evidence was inadmissible against appellant. He had no knowledge of it, and was uot chargeable with what occurred between third parties. He is to be judged by his own intents and not what others believed or thought.

Another bill of exceptions recites that the court erred in refusing to permit the witness Jennings to testify. Jennings’ testimony was very material to defendant, and would have controverted in almost every particular the testimony of Taylor. The state’s objection to the witness testifying was based on the ground that he was jointly charged with appellant with the assault upon Taylor, and therefore could not testify. The bill of exceptions shows that Jennings' had been arrested and bound over by the magistrate to await the action of the grand jury, but had never been indicted; the grand jury having adjourned. There is a statement to the effect that it was anticipated the grand jury would be recalled during the term, but it is not shown even that this would be with reference to Jennings’ ease. The action of the court sustaining the state’s objection to the witness Jennings testifying was based on an article of the Code of Criminal Procedure which provides that persons charged as principals, accessories, or accomplices, whether in the same or in different indictments, cannot be introduced as witnesses for one another. This article has been construed by this court in Scroggin v. State, 30 Tex. App. 92, 16 S. W. 651, and in Campbell v. State, 30 Tex. App. 645, 18 S. W. 409, to apply only to parties who have been indicted. Those decisions lay down the doctrine and hold that until the party is indicted he is not rendered incompetent to testify in behalf of a code-fendant on his trial. Under these decisions the court was in error. Jennings was a competent witness, and his testimony should have gone before the jury.

The court gave a charge on provoking a difficulty. It is questionable whether provoking a difficulty was in the case; if so, it was raised upon the testimony of Taylor to the effect that appellant called on him with reference to these reports and statements in regard to appellant’s cheating and defrauding people who sold to his mill, and during this conversation struck Taylor with his fist. ■If this testimony raises the issue of provoking a difficulty, which the writer does not believe, then it was necessary under the testimony of the defendant to charge the converse of the proposition. He emphatically denies Taylor’s testimony, and in his evidence shows he did not provoke any difficulty, but that, upon asking Taylor about the matter, Taylor, in substance, reiterated his statements or used language which Indicated that he was repeating or standing by what he had said, and shot at appellant, and then turned his pistol back and shot Jennings. If upon another trial the court should see proper to charge on provoking a difficulty, the converse of the proposition should be given. A charge on provoking a difficulty is only given or authorized as a limitation upon the right of self-defense. The court having given a charge on provoking a difficulty and thus limiting the right of self-defense, he should have charged the converse of the proposition on appellant’s theory of the case, that if he did not provoke the difficulty, and Taylor was the attacking party, his right of self-defense would not be affected. See Gaines v. State, 58 Tex. Cr. R. 631, 127 S. W. 181.

It is deemed unnecessary to go into a detailed statement of the evidence adduced on the trial. It would serve no practical purpose.

Eor the errors indicated, the judgment is reversed, and the cause is remanded.  