
    DIETER v. STATE.
    (No. 3692.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.)
    1. Assault and Battery <@=>97 — Verdict— Specifying Degree of Offense.
    Where on a trial for assault the court submitted both aggravated and simple assault, and the jury imposed a fine of $25, which would be the maximum for simple assault, and the minimum for aggravated assault, they -should have specified in the verdict the degree of which accused was convicted.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. § 151; Dee. Dig. <&wkey;>97.]
    2. Criminal Law <&wkey;622 — Separate Trial of CODEFENDANTS — IilGIIT TO SEVERANCE.
    Where an application by a person charged with assault for a severance in order that an important witness for defendant, who was separately charged with the same offense, might be first tried, was in accordance with the law, it should have been granted, and its denial was reversible error, as the court had no authority to decide in advance whether the jury would acquit such witness.
    [Ed.’ Note. — For other cases, see Criminal Law, Cent. Dig. §§ 13S0-1383, 1385, 1386, 1388-1390; Dec. Dig. &wkey;622J
    8. Criminal Law <&wkey;419, 420 — Evidence — Provocation — Hearsay.
    On a trial for assault it was error to exclude defendant’s testimony that he assaulted the prosecuting witness because he was informed by his wife and others that the prosecuting witness had committed 'rape on her, it appearing that the wife told him about this only a few days before the trouble arose, and that the trouble arose at the first meeting after defendant learned of the rape, as insulting conduct towards a female relative can be shown by this character of testimony, and the rule of hearsay does not apply, especially as the statute itself provides in regard to such conduct that a killing must occur at the time of the happening of such conduct if defendant is present or as soon as he meets with the insulting party after being “informed” thereof.
    [Ed. Note. — Eor other eases, see Criminal Haw, Cent. Dig'. §§ 973-983; Dec. Dig. &wkey;419, 420.]
    Appeal from Floyd County Court; E'. P. Thompson, Judge.
    George Dieter was convicted of assault, and he appeals.
    Reversed and remanded.
    Graham & Graham, of Plainview, for appellant. C. C. McDonald, Asst Atty. Gen., for the State.
   DAVIDSON, J.

The jury failed to specify in their verdict whether defendant was convicted of aggravated or simple assault ; both being submitted by the court. A fine of $25 would be the maximum for simple assault, and the minimum for aggravated assault. The punishment was assessed at $23 in this case. The court submitted both degrees of assault in his charge to the jury. He was correct in submitting these two phases of the law under the evidence. Upon another trial this should not be permitted. The jury should specify of what degree appellant is convicted. We note this in passing, so that it may not again occur.

When the case was called for trial, appellant filed his application for severance. Another party, whose name is Viegel, was separately charged with the same offense, and the evidence shows that he was present at the time of the assault by appellant upon the alleged injured party, whose name is Ratjen. The motion for severance was in accordance with the law, and should have been granted. If we go to the statement of facts, we find the state’s contention was that Viegel, being present, was encouraging the defendant to malte the assault. This was denied by the defendant, and testimony introduced to show this was not true. This developed on the trial of the case in the introduction of evidence, but, be that as it may, the jury, ufader the facts, could easily have acquitted Viegel, and may have done so. In any event, the court had no authority to decide this question on motion for severance in advance. Viegel should have been tried first, and, had a verdict of not guilty occurred in his case, he would have been a very important witness for the defendant, because he was present and saw the whole transaction. It is further shown in the record that Viegel was offered as a witness, and on the state’s objection his testimony was not permitted to go to the jury because of the pendency of the prosecution against him for this same offense. This necessarily requires a reversal of the judgment.

While appellant was testifying in his own behalf, he was asked why it was that he made the assault on Ratjen. The court sustained the state’s objection, and appellant was not permitted to answer. Had he been permitted to answer, h'e would have stated that he was informed by his wife and others that Ratjen had been guilty of rape on her (his wife); that his wife told him about it only a few days before the trouble arose. This was their first meeting after he had learned of the rape of his wife, which testimony was excluded by the court. The defendant urged objection. The court approves this bill, with the statement that the jury was withdrawn, and the questions propounded to the witness and the answers elicited showed that the testimony was purely hearsay, and the court thereupon sustained the objections by the state on the ground and excluded the testimony. The court was in error. Insulting conduct towards a female relative can be shown by this character of testimony. All the authorities so hold wherever the question has arisen. The statute itself provides that in regard to insulting conduct the killing must occur at the time of the happening of the insulting conduct, if defendant is present and witnesses it, or as soon as he meets with the insulting party after being informed of that fact. The rule of hearsay does not apply. 1 The statute makes an exception with reference to this character of testimony.

The judgment is reversed, and the cause remanded. 
      dfcoFor other .cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     