
    BYINGTON v. STATE.
    (No. 6720.)
    (Court of Criminal Appeals of Texas.
    March 8, 1922.)
    Assault and battery <&wkey;96(2) — Refusal to give instruction relating to defensive theory held error.
    In a prosecution for aggravated assault by defendant, an adult male, on prosecuting witness, a child, where defendant testified that he was prevented by bystanders from separating prosecuting witness and defendant’s son, who were fighting, with his hands, and that he thereupon ticked prosecuting witness to stop him from choking defendant’s son, the refusal to give an instruction submitting the theory that defendant acted in defense of his son and used no undue force was error.
    Appeal from Brooks County Court; J. A. Brooks, Judge.
    Sam Byington was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    R. G. Storey, Asst. Atty. Gen., for the .State.
   MORROW, P. J.

Appellant was charged and convicted of an aggravated assault, the ground for the aggravation being that he was an adult male and the injured party a child. A fine of $25 was assessed against him.

Appellant’s son, Robert Byington, and Richard Sims, two lads, engaged in a fight. According to the state’s testimony, they fought for some 30 minutes, when appellant appeared on the scene and kicked the Sims boy.

From appellant’s testimony, it appears that another son ran and told him that Richard Sims was choking Robert Byington, appellant’s son; that appellant immediately went and found Sims on top of Robert. Bystanders forbade the appellant from separating them. Appellant, according to his statement, walked around the bystanders and reached his foot in and booted the Sims boy off of Robert and took his son back to the schoolhouse’; that he had no intention of hurting the Sims boy in any way, but only wanted to stop him from choking his son; that he would have taken hold of his son with his hands had he not been prevented from so doing by the bystanders. It is not indicated that the Sims boy was hurt, but reliance is had solely upon the fact that appellant’s conduct amounted to an assault by an adult male upon a child.

By exceptions to the main charge and special charges requested appellant sought to have his defensive theory submitted to the jury, namely, that he acted alone in defense of his son and used no undue force. Under the evidence, the propriety of giving such an instruction, we think, is not open to question. The Assistant Attorney General concedes that the refusal to do so was error requiring reversal. The principle is stated in Guffee v. State, 8 Tex. App. 187, and confirmed in many cases listed by Mr. Branch, in his Annotated Texas Penal Code (section 1913).

The judgment is reversed, and the cause, remanded.  