Appellant was convicted of manslaughter, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.
Appellant complains of the court's charge in the following particular, to wit: We quote: "It was in evidence that appellant and deceased met in the public road, and deceased assaulted appellant, and was choking him to an extent that appellant could not speak, and was about to force him to the ground, when appellant, who was much the smaller man, pulled his pistol, and killed deceased. The court charged the language of article 679, Penal Code, to wit, that homicide is justifiable when committed against an attack which produces a reasonable expectation or fear of death or of some serious bodily injury, but the court then instructed the jury that `serious bodily injury' meant such injury as might eventuate in death or might probably cause death. Appellant submits that this definition is radically wrong, and was greatly to his prejudice." In connection with this charge, we make a short excerpt from the testimony of appellant as follows: "Finally deceased got me by the throat, and began choking me until I was almost sinking down, and was holding to the top of the hind wheel with my left hand to keep from falling. Then I looked toward J.J. Crow, who was standing at the head of my team, with an appealing look that ought to have convinced any man that I needed help. I could not speak or relieve myself, and took out my pistol and shot Rone. This was all I could do to save myself."
Now, then, the question arises as to what are the rights of appellant on the question of self-defense. The statute says that he has a right to defend himself against reasonable expectation or fear of death or of some serious bodily injury. Does "serious bodily injury" mean necessarily contemplation of death, or any injury that will eventuate in death or might probably cause death? We do not think so. We think the word "serious" in said statute means what the word imports, — that is, grave; not trivial; not slight. Then "serious bodily injury" would be an injury that was not a trivial one; not a slight one. We know of no authority that says it means an injury that might eventuate in death or probably cause death. The record before us shows that appellant was being choked by deceased to such an extent as might indicate that he was being seriously injured, and to have his right of self-defense restricted in the manner as indicated in the court's charge we think was *Page 31 error. To be choked until one falls from lack of breath, or from injury inflicted, might be a serious injury; and we think, as contended by appellant, that he had a right to complain of the charge, and say that it greatly prejudiced his right of self-defense. We think the court erred in his definition of "serious bodily injury." We do not wish to be understood as holding that it is necessary to define the term "serious bodily injury," for we think the words carry upon their face their meaning; but we hold that "serious bodily injury" does not mean an injury that must necessarily or probably be fatal. We think the court's charge was erroneous.
Appellant complains that the court erred in refusing to permit John Ralston, Sr., to testify that J.G. Ralston had, in Waxahachie, on the day of the killing told him that the State's witness J.J. Crow had admitted to him that deceased, T.S. Rone, had pulled appellant off his wagon and assaulted him. We do not think there was any error in the court's refusal to permit the witness to so testify. It is clearly hearsay, and inadmisible. Snell v. State, 29 Texas Crim. App., 236.
Appellant excepted to the refusal of the court to give the following special charge: "A `mutual conflict,' as meant in the main charge, is when two parties voluntarily and willingly engage in a combat. If a contest is forced on a party, and, under all the circumstances, there is no volition on the part of the combatants, then the combat can not be called `mutual.' If you believe that Tom Rone intended, and it was his purpose, to fight defendant, and that he forced a fight upon defendant, and defendant did not willingly engage in a mutual combat, then defendant would have the complete right of self-defense. If Tom Rone assaulted defendant, and defendant, by reason of the superior strength of Tom Rone (if any), apprehended the infliction of a serious bodily injury from deceased, then defendant would have a right to act upon such appearance of danger, and if, doing so, he shot and killed deceased, then he would be justifiable under the law, and in such case you will so find." This charge, as far as we think the same was applicable, was given by the court in his main charge.
Appellant also excepted to the refusal of the court to give his special charge to the effect that, even if the jury believed that appellant and Rone mutually agreed to fight a fist fight, and that during the prosecution of said fight Norris and Crow approached them in such manner as made it reasonably to appear to defendant that one or the other was about to aid Rone in his assault upon defendant, and that defendant upon such apprehension fired and killed Rone, then his right of self-defense would not be abridged. We have searched the record in vain for any testimony authorizing such a charge and must say that the record does not disclose any such evidence. There was no error in the court refusing to give this charge.
Appellant contends that the court erred in its charge in effect limiting appellant's right of self-defense to greatly superior physical strength and manhood of deceased, T.S. Rone; for if appellant was unlawfully *Page 32 attacked, and was about to suffer serious bodily injury, his right of self-defense was complete, regardless of the superior strength of Rone. The evidence shows that deceased was a man of greatly superior strength to appellant. There is no controversy whatever on this question, and, in view of this fact, we do not think there was any error in the court applying the law to the facts of the case as he did in this instance. At any rate, we can not see that it was such error, if error, as would authorize a reversal of this case, under article 723 of the Code of Criminal Procedure.
In the view we take of this case, it is not necessary to discuss the sixth assignment of error, in reference to the misconduct of the jury, as it will not likely occur on another trial. For the error in the charge above discussed the judgment is reversed, and the cause remanded.
Reversed and remanded.