
    NASH v. STATE.
    (No. 11201.)
    Court of Criminal Appeals of Texas.
    Jan. 4, 1928.
    1. Indictment and information <&wkey;52(2) — That affiant was named in body of complaint charging assault as T. Eubank, and complaint was signed Troy Eubank, was not fatal defect.
    That affiant was named in body of complaint charging aggravated assault as T. Eu-bank, and complaint was signed Troy Eubank, affiant, was not fatal defect, since it was not necessary to name affiant in body of complaint.
    2. Assault and battery <&wkey;78 — Complaint charging aggravated assault was sufficient, where it alleged pistol was deadly weapon and manner of use.
    Complaint charging aggravated assault was sufficient, although it did not allege that pistol was instrument reasonably calculated and likely to produce death or serious bodily injury from manner in which it was used, where complaint specifically alleged that pistol was deadly weapon, and further alleged manner of its use.
    3. Assault and battery <&wkey;96(7) — In prosecution for aggravated assault, defendant was entitled to instruction that he was not guilty, unless pistol, as used as bludgeon, was deadly weapon.
    In prosecution for aggravated assault, in which prosecuting witness testified that defendant struck him one time with pistol, knocking him to his knees, and producing wound on his head, and that it was medium size pistol, defendant was entitled to instruction that he was not guilty of aggravated assault, unless pistol, as used, was deadly weapon.
    
      4. Assault and battery <&wkey;96(l) — In prosecution for aggravated assault with pistol used as bludgeon, court erred in not charging on simplé assault.
    In prosecution for aggravated assault, in which prosecuting" witness testified that defendant struck him one time with pistol, knocking him to his knees, and producing wound on his head, and that it was medium size pistol, court, erred in not charging on simple assault.
    5'. Assault and battery <&wkey;96(3)-— Charge on self-defense, in prosecution for aggravated assault, held too restrictive.
    In prosecution for aggravated assault, court’s charge on self-defense, in substance authorizing acquittal, if accused believed prosecuting witness was about to make an assault on him which put him in fear of his life or serious bodily injury, fieldI too restrictive.
    6. Assault and battery <&wkey;96(3) — In assault - prosecution, charge on self-defense, predicated on accused being officer, held properly refused; there being no testimony accused was acting as officer, or that witness knew he was officer.
    In prosecution for aggravated assault, charge on self-defense, predicated on idea that accused was an officer, field! properly refused, where prosecuting witness’ testimony showed that assault was wanton and unprovoked, and accused’s evidence raised issue of self-defense, and there was no evidence that accused was acting as officer, or was known to be such by prosecuting witness at time, since commission to an officer giving him right to carry pistol does not license him to make assault on a citizen.
    Commissioners’ Decision.
    Appeal from Wichita County Court at Law; C. M. McFarland, Judge.
    George B. Nash was convicted of aggravated assault, anil he appeals.
    Reversed and remanded.
    Ralph D. Pittman, Pitzhugh Hurley, and Bonner, Bonner & Ftyer, all of Wichita Falls, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, aggravated assault; penalty, fine of $100.

The complaint upon which this conviction was based is as follows:

“I, T. Eubank, do solemnly swear that I have good reason to believe, and do believe, that George B. Nash, on or about the 14th day of May, A. D. 1927, and before making and filing of this complaint, in the county of Wichita and state aforesaid, did then and there unlawfully in and upon T. Eubank make an aggravated assault with a deadly weapon, to wit, a pistol, and did then and there strike the said T. Eubank with said deadly weapon, against the peace and dignity of the state.
“Troy Eubank, Affiant.”

It is urged that the court erred in overruling motion to quash said complaint because, T. Eubank and Troy Eubank not being idem sonams, such variance in the name constituted a fatal defect. It not being necessary to name the affiant in the body of the complaint, appellant’s contention is without merit. Dunn v. State, 71 Tex. Cr. R. 89, 158 S. W. 300; Maíz v. State, 36 Tex. Cr. R. 447, 34 S. W. 267, 37 S. W. 748.

It is further urged that such complaint is deficient, because it is not alleged that the pistol was an instrument reasonably calculated and likely to produce death or serious bodily injury from the manner in which it was used. The complaint specifically alleges that the pistol was a deadly weapon, and further alleges the manner of its use^ This is all that was required, and in our opinion the complaint was sufficient. Hall v. State, 89 Tex. Cr. R. 254, 230 S. W. 690; Hunt v. State, 6 Tex. App. 663; Branch’s P. C. p. 933.

The prosecuting witness testified that appellant struck him one time with a pistol, knocking him to his knees, and producing a wound on his head; that it was a medium size pistol; its weight was not shown. Appellant denied this in part.

In our opinion, the court should have given appellant’s special requested charge No. 6, which appears to be an exact copy of the charge requested and refused in the case of Hardin v. State, 47 Tex. Cr. R. 493, 84 S. W. 591. See, also, Peacock v. State, 52 Tex. Cr. R. 432, 107 S. W. 346. A pistol used as a bludgeon is not necessarily a deadly weapon, and the appellant was entitled' to have the jury instructed in accordance with the holding in the Hardin Case, supra.

We think also that the court erred in not charging on simple assault.

The court’s charge on self-defense in substance authorized an acquittal, if appellant believed prosecuting witness was about to make an assahlt upon him which put him in fear of his life or serious bodily injury. This is a correct charge in a homicide case, but too restrictive in an assault case. See recent case of Pat Forest v. State (No. 11040) 300 S. W. 51, not yet officially reported, where the authorities on this question are collated, and a correct charge indicated.

We find the suggestion that a charge should have been given on self-defense predicated upon the idea that appellant was an officer. From the testimony of the prosecuting witness, appellant’s assault was wanton and unprovoked, while the appellant’s evidence raises the issue of self-defense. There is no testimony showing that appellant was acting as an officer, or was known to be such by the prosecuting witness at the time. A commission to an officer giving him the right to carry a pistol does not in any degree license him to make an assault upon a citizen. The record is wholly lacking in evidence to support any such issue suggested by appellant, even if his proposition was a correct statement of the law.

The bill as to the admission of certain hearsay evidence was not error in the light of the court’s qualification.

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

PE®, OURIAM. 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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