
    FITCH v. STATE.
    (No. 9436.)
    (Court of Criminal Appeals of Texas.
    Nov. 11, 1925.)
    1. Assault and battery &wkey;96(7)— Submission of case on theory that assault becomes aggravated when premeditated held error, in view of information.
    Submission of ease on theory that an assault and battery becomes aggravated when committed with premeditated design held error, in view of Penal Code, art.. 1022, pars. 7-9, where information did not charge premeditation.
    2. Assault and battery &wkey;s96(3)— Charge held erroneous as unduly limiting right of self-defense.
    In prosecution for aggravated assault, charge that right of self-defense commenced when necessity began, and ended when necessity ceased, held error as unduly limiting right of self-defense.
    3. Assault and battery <&wkey;54 — Defendant guilty of aggravated assault, if inflicting serious injury on injured party with either bottle or club.
    In prosecution for aggravated assault with a club and bottle, instructions should have required conviction if he inflicted serious bodily injury by striking and beating injured party with either bottle or club.
    Commissioners’ Decision.
    Appeal from Willacy County Court; W. H. Mead, Judge.
    J. E. Fitch was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    Davis E. Decker, of Raymondville, for appellant.
    Sam D. Stinson, State’s Atty., of Green-ville, and Nat Gentry, -Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The appellant was convicted in the county court of Willacy county for the offense of an aggravated assault, and his punishment assessed at a fine of $75.

The state’s testimony shows' that the alleged injured party went to the appellant to talk to him while appellant was in his field at work, and without cause or provocation the appellant beat him with a club and also threw a jar of oil at him. The testimony is sufficient to show that the injuries inflicted were serious. The appellant’s testimony showed that he acted in self-defense. The information charges that the aggravated assault and battery was committed by the infliction of serious bodily injuries on the injured party. In submitting the case to the jury, the court submitted it on the theory of serious bodily injury and also on the theory that an assault,and battery becomes aggravated when committed with premeditated design.

Appellant pertinently objected to this charge on the ground that the information did not charge that the assault was committed with premeditated design. Appellant’s contention in this respect is correct. Penal Code, art. 1022, pars. 7-9; Kouns v. State, 3 Tex. App. 13; Ferguson v. State, 4 Tex. App. 156; Anderson v. State, 16 Tex. App. 132; Scogin v. State, 100 Tex. Cr. R. 389, 273 S. W. 577, and cases-there cited.

Complaint is also made of the court’s charge because same limited appellant’s right of self-defense by charging on the question of provoking the difficulty and because the court, among many other statements, instructed the jury that the right of self-defense commences when necessity begins and ends when the necessity ceases. The appellant saved proper exceptions to the court’s charge, and offered special charges correcting the errors complained of in the court’s main charge. In fact, the appellant offered what we believe is a complete correct charge on the issues involved in this case, with this exception: Instead of instructing the jury that they must believe beyond a reasonable doubt that the appellant inflicted serious bodily injury by striking and beating the injured party with a bottle and with a club, we think the jury should.have been told that, if he inflicted the serious bodily injury by striking and beating the injured party with either the bottle or the club, that this would be sufficient. With this single exception, we think the first charge offered by appellant ought to have been given in lieu of the charge that was given, and we suggest that, in view of another trial of the case, this practice be followed.

For the errors above mentioned, it is our opinion that the judgment should he reversed, and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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