
    McHAM v. STATE.
    (No. 4599.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.)
    1. Criminal Law <&wkey;747, 1159(3) — Question xob Jury.
    The question of defendant’s guilt of a simple assault, the testimony being conflicting, was one of fact for the jury, and not for the Court of Criminal Appeals.
    2. Criminal Law &wkey;>363 —Assault —Evidence — “Res Gestae.”
    In a prosecution for simple assault, where the testimony showed that, before the prosecuting witness and another began to fight, such other called the prosecuting witness “a thick-lip-son of a bitch,” which at once caused a fight; that, just before, defendant had told the other to get the prosecuting witness out of the house; and that, as soon as the prosecuting witness and the other began to fight, defendant ran up and struck the prosecuting witness on the side of the face, constituting the offense charged — testimony as to the cursing and name calling was admissible as part of the res gestae; res gestae being the facts and circumstances immediately hovering around and directly connected with the transaction, occurring at the time and place of the main fact.
    [Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Res Ges-tee.]
    3. Criminal Law <&wkey;1169(6) — Appeal — Harmless Error—Evidence.
    Where the lowest punishment was assessed against defendant, if the testimony was not res gestse, and erroneously admitted, its admission was not error justifying reversal.
    4. Criminal Law &wkey;>829(l)—Trial—Instruc-tions—Repetition.
    It was not error to refuse to give again substantially, at defendant’s request, a charge already covered by the court’s charge.
    Appeal from Lamar County Court; Tom L. Beauchamp, Judge.
    Earl McHam was convicted of a simple assault, and lie appeals.
    Judgment affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of a simple assault, and the lowest fine assessed against him.

The testimony of the state is positive and clear, establishing the offense charged; that of the appellant and his witnesses, if believed, would have shown that he was not guilty. This was a question of fact for the jury, and not for this court.

Appellant has two very meager bills to a question asked and an answer given, which, under the rules, are so defective as to preclude their consideration; however, considering them, neither shows any reversible error. In one, he objected to the county attorney asking a witness if Earl Humphrey cursed or abused him before they began fighting, and he answered, “Yesthat he called him “a thick-lip son of a bitch.” In the other, he objected to this .question to a witness: “While you were were holding the defendant, did he curse you?” and he answered, “Yes; he called me a son of a bitch.” To the bill complaining of the first, the court, in approving it, explained that á witness had testified he heard “defendant tell Humphrey to get Haley (the assaulted party) out of the house, thus connecting him as a vice principal, if true.” All of this testimony was clearly res gestse of the transaction. Tlfe testimony was sufficient to show that just before the prosecuting witness, Haley, and Humphrey began fighting, Humphrey called Haley a thick-lip son of a bitch, which seemed to have at once caused a fight between them; that just before this defendant told Humphrey to get Haley out of the house, and as soon as Haley and Humphrey began to fight appellant ran up and himself struck Haley on the side of his face a hard lick, and knocked him to one side, which constituted the offense in this case. Shelton then grabbed defendant and'held him until the fight was over. It was as Shelton grabbed and held him, and .because thereof, appellant then called Shelton a damned son of a bitch. Judge White, in his Annotated P. G. § 1236, correctly says res gestse are the facts and circumstances immediately hovering around and directly connected with the transaction, occurring at the time and place of the main fact, and that all which was said or done, or that which occurred at the time of the alleged offense, tending in the slightest degree to explain the transaction or conduct or motives of the parties, is admissible. These statements were clearly res gestse. Muldrew v. State, 73 Tex. Cr. R. 469, 166 S. W. 156, and cases cited.

As stated, the lowest punishment was assessed against appellant, and if it could be held that either of said items of testimony objected to by appellant was not res gestee, and erroneously admitted, the admission of either or both would be such error as to justify a reversal.

The only other objection was to the refusal of a special requested charge by appellant. The court correctly refused this, for the reason stated, that it was sufficiently embraced in the court’s main charge. This was true, and it, of course, was no error to refuse again to give substantially a charge that was already covered by the court’s charge.

The judgment is affirmed. 
      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     