
    AYCOCK v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 11, 1911.)
    1. Assault and Battery (§ 96) — Aggravated Assault — Self-Defense — Instructions.
    Where, on a trial for aggravated assault, accused, relying on self-defense, showed that prosecutor tvas about to attack him' with a knife; that accused then threw a rock at prosecutor, striking him on the head; that prosecutor came on; that accused then seized a breast yoke, and fought with that; and that, when prosecutor ceased trying to fight, accused desisted — a charge that, in the exercise of the right of self-defense, one is only permitted to use such degree of violence as is necessary to protect himself against actual or apparent violence, and the right to self-defense is limited only by what reasonably appeared to be dangerous to accused from his standpoint, and if accused when inflicting the injury on prosecutor acted in his own necessary defense against the assault of prosecutor, or in preventing such assault, actual or apparent, and did not use greater force than necessary, he was not guilty, was too restrictive, and did not present the law of self-defense as applicable to the facts.
    [Ed. Note. — For other cases, see Assault and Battery, Dec. Dig. § 96.*]
    2. Assault and Batteky (§ 96) — Aggka-vated Assault — SEle-Defense—Instettc-. tions.
    Where, on a trial for aggravated assault, accused relied on self-defense, and the facts called for a charge on excessive force after the danger had passed, the court should submit in separate instructions the law of self-defense and the law of excessive force.
    [Ed. Note. — Por other cases, see Assault and Battery, Dec. Dig. § 90.]
    Appeal from Collin County Court; John Church, Judge.
    Jack Ay cock was convicted of aggravated assault and battery, and he appeals.
    Reversed and remanded.
    Wallace Hughston, G. R. 'Smith, and W. R. Abernathy, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
    
      
      For other oases 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 and battery. This is the second appeal. The first appeal, as decided, is reported in 55 Tex. Cr. R. 142, 115 S. W. 590. While the statement contained in the report of the case in that volume is meager, we are of opinion that it is perhaps sufficient for a decision of some of the main questions involved on this appeal.

The state’s theory, it will be noted, from a report of the case, was that appellant made an unjustified assault and battery upon Tom Bradley with a rock and a breast yoke, inflicting injury upon him, among other things, broke his nose. Under appellant’s theory of it, he fought in self-defense, inasmuch as his evidence shows the deceased was advancing upon and about to attack him with a knife. The knife was found on the ground where the difficulty occurred. He threw a rock at Bradley and struck him on the head, and as Bradley came on, he seized the breast yoke and fought with that, and the record sho ws by the testimony of appellant that, when Mr. Bradley ceased trying to fight, he, appellant, desisted from further violence. Appellant excepted to the charge given by the court, and asked several instructions to correct errors or supposed errors on the part of the court. The court gave this charge: “Every person is permitted by law to defend himself against any unlawful violence offered to his person and to continue doing so until the danger, actual or apparent, has ceased to exist, but in exercising this right of self-defense he is only permitted to use such degree of violence as is necessary to protect himself against such actual or apparent violence, and this right of self-defense is limited only by what reasonably appeared to be dangerous to the defendant at the time viewed from ‘his standpoint and no other.” Many grounds of exception are urged to this charge — that it is on the weight of the evidence, it is vague, indefinite, and obscure; that it is contradictory in stating in one clause the law of self-defense is limited by necessities of the occasion, and in another clause states that it is limited by the appearance of danger; and that it is not a clear unambiguous statement of the law of self-defense, nor was such a charge given in any other portion of the court’s charge.

The court follows this charge up with the following: “Now if you believe from the evidence that the defendant in inflicting the injury upon the said Tom Bradley as charged in the information, if he did, in his own necessary self-defense against the assault of said Tom Bradley or in preventing such assault, actual or apparent, as charged in section 7, and that he did not in either event use greater force than was necessary under the circumstances as it reasonably appeared to him at the time, you will find him ‘not guilty.’ ” It is suggested this portion of the charge is erroneous, misleading, upon the weight of the evidence, too restrictive and unlawfully limits the right of self-defense, and that it is meaningless, that it' does not state any fact whatever upon which defendant’s plea of self-defense could be predicated, and that there is no statement of the facts which would authorize defendant’s acquittal, and it does not authorize the jury to view the facts a ip they appeared to the defendant, and that it limits the right of self-defense to what is actually necessary, instead of limiting it to what is reasonably necessary, and, in order to acquit appellant under the charge, they had to find that defendant used no more force than was necessary, whereas, under the law, if the jury had a reasonable doubt on this issue, it should be resolved in defendant’s favor, and he should have been acquitted. To meet these matters the appellant wrote out some charges and requested the court to give them, which the court promptly declined. This charge among others was requested: “When a person is unlawfully assailed, he has the right to use force against force, 'and defend himself by the use of every means within his power to defend himself against such assault. And in this connection you are instructed that the defendant has the right to act upon the ap-pearanee of danger as fully and to the same extent as if the danger were real, and it reasonably appeared to the defendant viewed from his standpoint at the time and from no other that he was in danger, then he had the right to defend1 himself by the use of every means in his power to protect himself from such real danger and from such apparent danger as fully and to the same extent as if the danger were real.” He also requested a charge that, where a person is unlawfully assailed, he is not bound to retreat, hut may defend himself against either an actual or apparent danger. He also requested the court to charge the jury that appellant had the right to use such force as appeared to him under' the circumstances to be necessary and until the danger had passed, and in passing upon this question they had to view it from the standpoint of the defendant, although they might not themselves find and believe that appellant did actually use force after the real danger had passed. The court was also requested to charge the jury that if Bradley told the defendant that he would fix his case, or tend to his case as soon as he got up there, and advanced toward defendant with a drawn knife, and such knife was calculated to produce death or serious bodily injury upon the person of defendant, then the law presumed it was the intention of Bradley to inflict upon defendant death or serious bodily injury. We are of opinion that the court’s charge as given was too restrictive, and did not present the law of self-defense in the clear-cut way required by our statute. These charges were refused. The court gave no clear-cut charge on self-defense, independent of restrictions the court thought ought to be imposed by reason of excessive force and continuing the assault after the danger had passed. The court is not authorized to pass upon these questions. This is the province of the jury. Appellant had the right under his testimony to have the jury pass upon the clear-cut issues of self-defense, and, if the facts justified or called for a charge on excessive force after the danger had passed, these matters should be submitted in separate charges. Appellant not only excepted to the court’s charge, but requested special instructions.

We are therefore of opinion that the charge of the court was too restrictive, and did not present the law as it should have been in these issues, and for which reason the judgment is reversed, and the cause is remanded.

PRENDERGAST, X, not sitting.  