
    LARUE v. STATE.
    (Court of Criminal Appeals of Texas.
    April 17, 1912.)
    1. Assault and Battery (§ 83) — -Evidence —Admissibility—Relevancy.
    In a prosecution for aggravated assault by cutting, evidence of an agreement between the accused and his brother to beat up a person other than the one assaulted, who was one who interfered in the assault contemplated, was improperly admitted, where such person was cut by the brother, and the accused did not know of it until after the conclusion of the difficulty.
    [Ed. Noté. — For other cases, see Assault and Battery, Cent. Dig. §§ 128-134; Dec. Dig. § 83.]
    2. Criminal Law (§ 692) — Admission oe Evidence.
    Examination by the defense in a prosecution for an aggravated assault as to matters which were not relevant to the assault, but which the state had been allowed improperly to develop, would not excuse the improper admission, where the examination was merely to meet the testimony of the state, to which the accused had objected, where the defense also asked for the exclusion of the testimony and for a charge taking its effect from the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1629; Dec. Dig. § 692.]
    Appeal from District Court, Houston County; B. H. Gardner, Judge.
    Ben Larue was convicted of aggravated assault, and appeals.
    Reversed and. remanded.
    Adams & Young, of Crockett, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      Kor 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; his punishment being assessed at a fine of $500 and six months’ imprisonment in the county jail.

The facts, in brief, show that appellant and his brother Tom had a grievance against Hooks Wills on account of certain insulting language used with reference to them, on account of which they purposed giving Wills a thrashing. The language imputed to Hooks Wills with reference to appellant and his brother was that he was a damn son of a bitch, or a damn lying son of a bitch. It may be taken as a fact, so far as this appeal is concerned, that they went to a certain assemblage, where they expected to find Hooks Wills, for the purpose of engaging in a personal difficulty with him. After reaching the point, Wills and they went some distance away from the house and a difficulty ensued, in which they gave Hooks Wills a beating. During that difficulty Tom Hart, who is alleged to be the injured party in this case, interfered in some way; at least, a conver sation occurred in which Tom Larue asked if he was taking a part in the difficulty with Hooks Wills. This was defied by Tom Hart-Appellant and Hart were having a conversation just a little strenuous when Tom Larue came up, and about the time appellant and Hart separated, Tom Larue cut Hart with a knife. The evidence goes to show that appellant did not know that his brother had; cut Hart until after the difficulty was over and the parties had separated. This is, we think, a sufficient statement of the case to dispose of the main question for decision.

Over the objection of appellant, all of the troubles between Hooks Wills and appellant and his brother Tom were permitted to go before the jury in all of its details, showing an agreement between the two-brothers to give Hooks Wills a beating on-account of the language he used about them. Hart was in no way mixed up with the-Hooks Wills matter,-except that he got into-the trouble during the fight between Wills, and appellant and Tom Larue. The statement of facts in regard to these matters is made a part of the bills of exception, and we judge, from a qualification to one of the bills, that the judge was actuated to some-extent in his rulings in admitting these matters in regard to Hooks Wills and appellant and his brother because the defendant him'self asked some questions in regard to those matters.

It is true, after the state had developed these matters, defendant did ask questions about it; but they were objecting to-the introduction of all those matters in the first instance, and their examination into-it was to meet as best they could the testimony already introduced by the state. We-are of opinion that the court was in error in admitting those matters, and they should not have gone to the jury. Appellant not' only exceptéd at the time, but moved the-court to exclude all of this testimony; not: only so, but asked a charge in regard to it.. The court refused to give the charge as requested, and also refused to exclude the testimony. This evidence had no place in the record. These matters occurring between Hooks Wills and appellant and his brother Tom had no relation to the trouble between Hart and appellant. Its only effect was to injuriously affect the defendant’s case before the jury. This does not refer to what occurred at the time of the cutting or transaction in which Hart was stabbed.

For this reason, the judgment will be reversed, and-the cause remanded.  