
    McBRIDE v. STATE.
    (No. 4443.)
    (Court of Criminal Appeals of Texas.
    April 25, 1917.)
    1. Ceiminal Law <&wkey;806(2) — *Trial—Instructions.
    Under the rule requiring the court to avoid repetition in its charge in a prosecution for an assault, it was not error to refuse to give more than one of three requested charges on the issue of self-defense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1973.]
    2. Criminal Law <&wkey;1137(3) — Appeal and Error — Instructions.
    In a prosecution for assault, defendant could not, on appeal, complain of an instruction on self-defense given at his request, even though it was erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3009.]
    Appeal from Lee County Court; John H. Tate, Judge.
    John McBride was convicted of simple assault, and he appeals.
    Affirmed.
    Thos. W. Thompson, of Giddings, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This appeal is from the judgment convicting appellant of simple assault and assessing his punishment at a fine of $5.

The prosecution was for aggravated assault with a knife, alleged to have been a deadly weapon. The injured party had in his possession a gun at the time of the difficulty, which gun was not loaded. The appellant was not aware of that fact, however, and cut the injured party with the knife. The facts raised an issue of self-defense, and the court in its charge failed to submit that issue. No exception, however, was reserved to the charge, but appellant submitted three special charges, each undertaking to present the issue of self-defense. One of them was given and the other two refused. Neither of the special charges accurately stated the law of self-defense. The court would not have been justified in giving more than one of them, because to have done so would have been violative of the rule which requires the court to avoid repetition in his charge. The special charge on self-defense which was given submitted the issue to the jury and directed an acquittal in the- event the jury found that appellant assailed the injured party to protect himself against real or apparent danger. Under these circumstances we cannot hold the trial court in error either in refusing the two special charges or in giving the one that he did submit-to the jury. Carbough v. State, 49 Tex. Cr. R. 454, 93 S. W. 738; Moxie v. State, 54 Tex. Cr. R. 529, 114 S. W. 375; Branch’s Ann. P. C. § 1946, p. 1089; Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112; Comer v. State, 26 Tex. App. 509, 10 S. W. 106; Vernon’s Ann. C. C. P., art. 743, p. 518, note 3, sub. 49.

Finding no reversible error in the record, it is ordered that the judgment of the lower court be affirmed.  