
    HOLSTEAD v. STATE.
    (No. 7650.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1923.)
    1. Criminal law <&wkey;>730(l5) — Refusal to withh . draw argument of county attorney by special chárge held reversible error.
    Where in the argument of a ease in which the county attorney testified as a witness against accused, the county attorney stated that defendant was a low-down hrute and had not told the truth, trial court’s refusal to give special charge to withdraw, and giving instead a verbal statement that counsel sometimes become enthused and used expressions that should not be used and that such statements were improper and should not be considered, held reversible error.
    2. Criminal law &wkey;783'/2 — Refusal to withdraw by special charge police chiefs testimony that accused gave officers a lot of trouble held reversible error.
    • In a prosecution for aggravated assault, refusal to give special charge to disregard testimony of police chief that accused had “given us officers a lot of trouble,” .held reversible error, as the character 'of accused was not an issue upon which the prosecution could take the initiative, and, such evidence being inadmissible, it should have been limited or withdrawn.
    ' 3. Assault and battery <3&wkey;96(2) — Requested charge on defensive theory should have been given.
    In a prosecution for aggravated assault, a special charge submitting accused’s defensive theory that in ejecting complaining witness from his premises he was without intent to injure her, and used no more force than was necessary, should have been given.
    <§C3>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Orange County Court; Ed. S. MeCarver, Judge.
    C. B. Holstead was fined for aggravated assault, and appeals.
    Reversed and remanded.
    Dies, Stephenson & Dies, of Orange, for appellant.
    It. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The offense is aggravated assault; punishment fixed at á fine of 25 dollars.

The prosecutrix, Mrs. Wilson, entered the automobile 1 establishment of the appellant for the purpose of selling hosiery. While there she engaged in indelicate conversations with men who were present, drank liquor, and became intoxicated. Upon the advice of the appellant, she went to her room in the hotel which was above his place of business. She later returned, and became intoxicated and boisterous. Appellant asked her to leave the premises, and, according to her testimony, he asked Her to leave by way of the back door", but she refused to do so. Prom the testimony of others present, appellant endeavored to get her to go out the front door. When she.refused, he put her out the back door. She said that he tore her sleeve, and that she had bruises on her arm, though she could not say that he struck her. Others present testified to the fact that in putting her out he used only such force as was necessary to eject her.

While on the witness stand, the county attorney developed from the appellant the fact that they had conversed in the office of the county attorney about “these cases.” Appellant said that he did not offer to plead guilty to one if the others were dismissed, but that such proposal was made to him at the time. • The county attorney went upon the stand and contradicted this statement.

In argument, the county attorney, speaking of the appellant, used this language: ‘The defendant is a low-down brute, and has not told the truth.’" Exception was reserved to this argument at the time, and a special charge was presented asking that it be withdrawn. This was refused. The court verbally told the jury, in substance, that “counsel will Sometimes become enthused and use expressions that should not be used and should not be considered by you. This kind of argument is improper and counsel should not engage in it.” Exception was reserved to this verbal admonition because it was general and was not sufficient to obviate the necessity of giving the special charge requested. The argument was obviously in the nature of a direct statement of facts and upon an issue upon which the testimony of appellant and the county attorney was in conflict. The argument should not have been made. The special Charge should have been given.

While the chief of police, as a state’s witness, was' under direct examination,. he said that the appellant had “given us officers a lot of trouble.” This apparently was in direct, response to a question propounded by state’s counsel. Appellant presented a special charge directing the jury to disregard the statement. This charge was refused. It should have. been given to the jury. The fact that appellant had been giving the officers trouble was not admissible, and, being before the jury, it should have been limited or withdrawn by the special charge. The character of the accused was not an issue upon which the state could legally take the initiative.

A special charge was also requested submitting appellant’s defensive theory, namely, that he was without intent to injure' the prosecutrix, Mrs. Wilson, and was rightfully endeavoring to eject her from his premises, and that in doing so he used no more force than was necessary to accomplish that design. This is not the language but the substance , of the charge. On another trial it should be given.

Because of the errors pointed out, the judgment is reversed, and the cause remanded.  