
    JACKSON v. STATE.
    (No. 8846.)
    (Court of Criminal Appeals of Texas.
    May 6, 1925.)
    1. Assault and battery <§=>96 (3) — Refusal of instruction to acquit, if accused cut complainant while defending himself from complain- ‘ ant’s unlawful assault, held error.
    In prosecution for aggravated assault, where the only charge on self-defense only justified accused in repelling attack provoked by his insulting words, and accused denied using any insulting words, in view of Pen. Code 1911/ art. 1014, subd. 6, refusal of special charge,' that, if -accused cut prosecuting witness while’' defending himself against unlawful attack by him, he should be acquitted, was error.
    2. Assault and battery <@=>96 (7) — “Serious; bodily injury” should be defined if it becomes’ material issue in prosecution for assault.
    In prosecution for aggravated assault, “se--rious bodily injury” should be defined, if character of injury is made issue.
    Appeal from Corporation Court of Tex-arkana; E-. Harold Beck, Recorder.
    Will Jackson was convicted of aggravated-assault, and he appeals.
    Reversed and remanded.
    Elmer L. Lincoln, of Texarkana, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Appellant is under conviction for an aggravated assault upon Jesse; Radcliffe. Punishment is 12 months in jail.

Appellant is a negro; Radcliffe a white man. A carnival was in progress in the city of Texarkana. While defendant and a wo-l man companion were walking along a street! at the carnival, they met Radcliffe and his-brother. In passing the parties brushed against one 'another. Radcliffe and his brother testify that Jesse said to defendant, “Arei you going to run over us?” to which defendant replied, “I will, G-d-you, if you-don’t get out of the way,” and that without further remarks drew a- knife and began cutting Jesse; that defendant then ran and,was pursued by Jesse; that defendant got a sticli and knocked Jesse down. Jepse denied being drunk, but admitted he had been drinking intoxicating liquor. Defendant and his companion give an entirely different version of the transaction. They testify that when Jesse asked defendant if he was trying to run over them, defendant disclaimed any sqch intention, saying,-“No, sir, excuse me, please”; that one of the Radcliffes cursed defendant and. both of them attacked him, one striking him in the face with his fist; that he kept them off as best he could until he could get his knife out, when he cut Jesse; that defendant then ran and was pursued by Jesse, who had a stick in his hand; that defendant secured a stick and threw it at Jesse. Disinterested witnesses did not see the beginning of the trouble, but all agree that when their attention was attracted defendant was running and was being pursued by Jesse. Defendant proved a splendid reputation by his employer and other witnesses.

The only charge given upon the issue of self-defense was'the following:

“You are further instructed that no verbal provocation justifies an assault and battery; and, if the defendant used insulting or abusive words or language to Jesse Radcliffe or to Albert Radcliffe, this would not justify the said Jesse Radcliffe or the said Albert Radcliffe in making an assault upon the defendant, and such assaults, if made, would be unlawful, and the defendant would have the right to defend against such assaults, if any, and his right of self-defense would.be complete.”

It will be noticed that this instruction only justifies defendant in repelling an attack by the Radcliffes which had been provoked by insulting or abusive words used by defendant towards them. Defendant and his companion deny any use by him of words which were the least abusive, or which could be at all construed as insulting. Defendant had a right to defend against any unlawful assault made upon him by either or both of the Radcliffes. The charge was excepted to as not presenting the issue of self-defense raised by the testimony, and in direct connection with such exception the court was requested to give a special charge upon the subject which, in substance, told the jury that, if Jesse Radcliffe or Albert Radcliffe, either or both, had made an unlawful assault upon defendant, and that he cut Jesse while defending himself against such attack, he should be acquitted. This charge should have been given. Article 1014, subd. 6, P. C.; Kinslow v. State, 66 Tex. Cr. R. 430, 147 S. W. 249; Parish v. State, 69 Tex. Cr. R. 254, 153 S. W. 327; Waller v. State, 90 Tex. Cr. R. 257, 234 S. W. 534.

The court authorized conviction of aggravated assault if the knife used by defendant was a deadly weapon, or if serions bodily injury was inflicted. A “deadly weapon” was defined in the charge, but there was no definition of the term “serious bodily injury.” A special charge defining it was requested and refused. In De Los Santos v. State (Tex. Cr. App.) 31 S. W. 395, Judge Hurt says in some cases such a charge would be necessary, but held its omission in that ease not hurtful, as the seriousness of the injury was not questioned. In Thomas v. State, 55 Tex. Cr. R. 293, 116 S. W. 601, Judge Ramsey expresses the opinion that the court should not in any case define what is meant by “serious bodily injury,” as they are words of ordinary significance, as well understood by a jury as would be any language employed to define them. It is evident from the opinion in Porter v. State, 60 Tex. Cr. R. 590, 132 S. W. 935, that the eminent jurist who wrote in the Thomas Case had changed his views as therein expressed, for the Porter Case was reversed by him on account of the failure of the court to define what was meant by “serious bodily .injury.” No reference was made in Porter’s Case to the conflicting announcement in the Thomas Case. We are led to believe the divergent views announced in the two cases came about by reason of the facts being different, and reconciling the Conflict as best we may, think the statement in the earlier case of De Los Santos (supra) to be correct; that is, that in some cases such definition is required, especially where the character of the injury is made an issue upon the trial. If this should become an issue upon another trial of the present case, it would not be inappropriate to define what is meant by a serious bodily injury.

The point is made that the evidence in the record fails to show, either that the knife used by defendant was a deadly weapon, or that the wounds inflicted were of a serious character. These matters may be more clearly developed by the testimony of the physician upon another trial. We do not discuss the questions, as a reversal is demanded by the errors already referred to.

The judgment is reversed, and the cause remanded.  