
    SHELTON v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1912.)
    1. Assault and Battery (§ 96) — Aggravat--ed Assault — Instructions.
    Where, in a prosecution for aggravated assault by striking prosecutor with a rock, there-was no evidence that the injuries were serious or of an aggravated nature, an instruction defining aggravated assault as one from which serious bodily injury results, or committed with a deadly weapon under circumstances not amounting to intent to murder or maim, or committed with a premeditated design and by the use of means calculated to effect great, bodily injury, and charging that, if defendant committed an aggravated assault by then and' there assaulting and cutting prosecutor with-a knife, as alleged in the information, he should-have been found guilty, etc., was erroneous.
    [Ed. Note. — For other cases, see Assahlf and Battery, Cent. Dig. §§ 142-150; Dec. Dig. §-. 96.]
    2. Assault and Battery (§ 96) — Aggravated A'ssault — Requested Charge — “Serious Bodily Injury.”
    Where, in a prosecution for aggravated’ assault, there was no evidence that the injuries, were serious, but the court improperly charged', a definition of aggravated assault as the infliction of serious bodily injury, etc., it was-error to refuse to charge that there was no-testimony showing serious bodily injury of prosecutor at the hands of defendant, and that the term “serious' bodily injury” meant such, injury as gave rise to apprehension — an injury-attended with danger.
    [Ed. Note. — For other cases, see Assault and' B'attery, Cent. Dig. §§ 142-150; Dec. Dig. §- 96.
    
    For other definitions, see Words and Phrases, vol. 7, pp. 6420-6421.]
    3. Criminal Law (§ 814) — Aggravated Assault — Self-Defense.
    Where, in a prosecution for aggravated assault, there was no evidence that defendant-provoked a difficulty with prosecutor, an instruction that, if defendant, either by the use of words or acts, provoked a difficulty at the-time of the assault, he was not entitled to an acquittal on the ground of self-defense was erroneous.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1821,1833,1839, I860, 1865,1883, 1890,1924, 1979-1985, 1987; Dec. Dig. § 814.}-
    Appeal from Hill County Court; Horton-B. Porter, Judge.
    Herman Shelton was convicted of aggravated assault, and he appeals.
    Reversed and'1 remanded.
    Collins, Cummings & Shurtleff, of Hills-boro, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other eases 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; Ms punisMnent being assessed at a fine of $25 and 50 days imprisonment in the county jail. The information charges that appellant committed the assault upon Prank Spencer with a rock, the same being a deadly weapon, and did then and there with said deadly weapon inflict upon the said Prank Spencer serious bodily injury. There was another count in the information which charged that, by cutting him with a knife, he inflicted serious bodily injury.

The court charged the jury: “An assault becomes aggravated when committed under any of the following circumstances: When serious bodily injury is inflicted upon the person assaulted; when committed with a deadly weapon under circumstances not amounting to an intent to murder or maim; when committed with premeditated design, and by the use of means' calculated to inflict great bodily injury. Now if you believe from the evidence in. this case, beyond a reasonable doubt, that the defendant, Herman Shelton, on or about the time alleged in the information, did commit an aggravated assault by then and there assaulting and cutting the witness Prank Spencer with a knife, as alleged in the said information filed herein, you will find the defendant guilty and assess his punishment by a fine of not less than $25 nor more than $1,000, or by Imprisonment in the county jail for not less than one month nor more than two years, or by both such fine and imprisonment.” And then instructed the jury not to consider the .first count.

It is contended that the charge is erroneous in submitting other grounds of aggravation and means of committing the assault than those charged in the information. This perhaps is fundamentally erroneous in that it authorizes the conviction of appellant upon grounds not set out in the information or affidavit. The evidence does not disclose that the injuries were of a serious nature; no witness testifies to that fact.

To meet this appellant asked two special charges; the first instructing the jury that there was no testimony showing serious bodily injury at the hands of the defendant, with directions to acquit. This was refused. He then requested that the jury be instructed that the term “serious bodily injury” means such injury as gives rise to apprehension — an injury which is attended with danger. This was refused. Under the facts, this was error. The instructions at least should have been given informing the jury what it took to constitute serious bodily injury.

Another charge was asked by the state, to wit: “In connection with the main charge you are further charged, as a part of the law herein, that if the defendant, either by the use of words or by acts committed by him, either or both, at the time of the alleged difficulty, did so, for the purpose of provoking a difficulty, he would not be entitled to an acquittal on the grounds of self-defense.” This charge was asked by the county attorney and given to the jury. This charge was clearly erroneous. No witness, as we understand this record, testified that appellant provoked the difficulty with the alleged injured party, Prank Spencer. The state’s case was made as strong as it could be made, or was made by the witness who testifies under the name of Prank Spencer. He says: “My name is Prank Spencer. I know the defendant, Herman Shelton, and have known him for about three months. I saw him in the latter part of January at Memphis Weaver’s house in Hill county between 10 and 11 o’clock. Mrs. Weaver, Jessie Shelton, and two kids were there. I was sitting down by the stove, and Herman came in and went to the bed and began fighting his wife, and I said to him, T would not do that, friend, if I were you,’ and I tried to get him to quit. And Herman asked ‘what I had to do with it,’ and I hit him with a rock and he cut me in the head. As I was going out of the door he ran into me again and he fell down and I got my knife and he cut me again, and we both went to cutting. I went out. I never did strike him before he struck his wife, and did not cut him until after he had cut me.” This is practically the state’s case.

Memphis Weaver one of the parties mentioned by the former witness, said these parties were at her house; that Herman Shelton, the defendant, was there on her invitation. On reaching the place, appellant’s wife opened the door, and they went in; the witness going in first. Prank Spencer was in the house. The way the trouble came up between Prank and Herman was “that Herman walked in the house and Prank was behind "the door, and Herman went to the bed and said to his wife he was going to kill her, and hit down on the bed, and then he reached for his knife, and then he opened it, and Prank walked out on the steps.. I do not know what he threw. That is the first time anything occurred between them there, and they went out of doors to fighting. I never heard him say anything. I never heard him say, T would not do that Herman.’ I don’t know exactly the size of the room where I lived, it is just a small house. Herman Shelton did not go toward Prank Spencer or make any effort toward him until after Prank threw at him.”

The defendant also testified that “the way the fight between Prank Spencer and I occurred was when I went in he was standing behind the door. I walked over by the bed where my wife was laying and spoke to her and asked what she was doing. When I turned around, then Prank Spencer hit me in the chest with a rock, and when he did we just went to fighting. He was aboiit six feet from me when he hit me, and he had his knife. When I got hold of him he cut me twice, on the head and on the chin. He broke his knife off in my head. I got him the last time, and he fell down, and I quit cutting him, and I had been cut twice before that. I had not done anything or said anything to Prank Spencer at the time he struck me. He spoke to me and I spoke to him. The last time I cut him was to keep him from killing me and so I could get out of the house.” The appellant further testified that he and his wife had been separated for about two or three months. He denied having hit his wife, but he had hit at her once. We fail to find any evidence in this record where appellant provoked a difficulty with Prank Spencer, and the court was in error in submitting that issue to the jury. Culp v. State, 58 Tex. Cr. R. 74, 124 S. W. 946; Harrison v. State, 102 S. W. 412.

There are several bills of exception presenting charges asked and refused, and exceptions to the court’s charge, and charges given by the court, both in the original charge and the. charge given at request of the county attorney. The questions would hardly need citation of authorities.

The judgment is reversed, and the cause is remanded.  