Appellant was convicted of an assault with intent to murder, and given two years in the penitentiary; hence this appeal. There are but two questions in the case that we deem necessary to be considered, and these involve the failure of the court to charge on aggravated assault, and the charge of the court on the law of self-defense. Appellant tendered to the court, at the trial, a charge on aggravated assault, which the court refused to give, and he excepted. The requested charge was predicated on the theory insisted on by the appellant, that the evidence showed, as the origin of the difficulty, an illegal arrest of appellant, made by one Singleton, the marshal of the town of Lexington, which was done at the instance of the prosecutor, Vanderworth. One of the charges asked by appellant on this subject is as follows, to-wit: "The party, Singleton, was without authority to *Page 12 arrest the defendant, Mundine; and if you believe from the evidence that Vanderworth, the alleged injured party, procured the said Singleton to so arrest the defendant, and was present and encouraged said arrest; and that the said Singleton, in so arresting the defendant in a rude and rough manner, and in the presence and hearing of others, roughly used him, tore his clothes from his person, and, against his will, detained him in his custody, and, refusing to permit him to have his liberty, threatened to strike him with a heavy iron instrument; and that thereby the mind of said defendant became agitated and excited to such a degree that it was rendered incapable of cool reflection; and that, while in such excited condition, he assaulted the said Vanderworth by shooting at him with a gun; and that such assault was not justified by the law of self-defense; and if you further believe that, at the time the original design to make the assault was conceived, the mind of the defendant was excited, in the manner and by the causes above stated — then you are instructed that the defendant would be guilty of an aggravated assault." Another charge is similar to this, except that it also involved a charge on cooling time. The evidence in this connection showed that on the evening of the 17th of June, 1895, appellant rode into the little town of Lexington, in Lee County, to the saloon kept by Fritz Vanderworth, and, according to the testimony of some of the State's witnesses, started to ride his horse on the gallery of said saloon, and then got down, and tried to lead him on it. Vanderworth told him not to do that, and defendant then hitched his horse to a post, and came into the saloon. (As to this episode, defendant denies that he tried to ride or lead his horse on the gallery, but that his horse was hardly bridle-wise, and was about to get on the gallery, when he got down, and led him away, and hitched him.) After he hitched his horse, he went into the saloon, slapped or struck one McCree over his head with his hat. They engaged in a scuffle. This ceased, and then defendant and one Charley Woodward engaged in a scuffle in the saloon. They scuffled for sonic time, knocked some chairs over, and broke a glass in the partition door between the front and back rooms of the saloon. There is no evidence showing that Vanderworth asked or attempted to procure the parties to desist from their scuffle, but went out of the saloon, and hunted up the town marshal, Singleton, and told him, according to his testimony, to go over and arrest them, as they were scuffling in his saloon, and breaking up his things. Singleton, the town marshal, says that Vanderworth came to him in front of Griffith's gallery (which is on the same block as Vanderworth's saloon), and said he wanted him to go over to his saloon, and arrest those boys; that they were not fighting, but were scuffling and breaking up his things; that he went over, and found Chap Mundine (appellant) and Charley Woodward tussling; that he caught hold of Chap Mundine and told him to consider himself under arrest. Charley Woodward testified: That, after the defendant and McCree got into a scuffle, he and defendant got into a scuffle also. "It was all in play; neither of us was mad at all." That they were playing. "We struggled *Page 13 around considerably, and I broke one of the glass out of the window on the south of the folding door leading from the saloon to the back room. I finally got Mandine down, and was on top of him under the table, when Singleton came in, and arrested the defendant. Chap Mundine asked Singleton what he was arresting him for; that he had done nothing." The defendant himself testified on this point to the same effect as the witness, Woodward. The State's witnesses, as well as the defendant's, show that the defendant wanted to know what he was arrested for, that he was doing nothing, and protested against his arrest. Singleton insisted on arresting him, and taking him to the mayor's office, and caught him by the collar. Defendant clung to Woodward, and insisted on not going. A struggle ensued between Singleton (who was a very large man, armed with a stick) and defendant, in which he dragged and pulled the defendant along from the back room of the saloon into the front room. During the struggle, Singleton tore the vest of the defendant, and also tore his shirt into shreds. Singleton called on Woodward to help arrest the defendant, but Woodward declined, stating that he was guilty of the same thing as Mundine, and that they were doing nothing. He called to another party to assist him, and finally defendant agreed, if they would send and get him a shirt, that he would go with them anywhere, but that he would not go out on the streets naked. During the struggle, defendant was very violent in his language towards Singleton, and insisted on knowing who had him arrested. Singleton finally told him that it was Vanderworth. Defendant then directed his animosity towards Vanderworth, and cursed and abused him, and according to the State's witnesses, told him that, as soon as he got out of this he intended to kill him for having him arrested. In a short while, the defendant's shirt came, and he went back a little space in the room, to put it on; and as soon as he had done this, instead of submitting to further arrest, he walked out the back door, and started off towards his home, and according to the State's witnesses, defied Singleton to rearrest him. In a short while (the witnesses put it from a half hour to an hour after the defendant left) he came back to the saloon, armed with a shotgun. According to the State's witnesses, as soon as he came into the saloon, he raised his gun, and fired it at Vanderworth, who was in the back room of the saloon at the time, armed with a pistol; he having seen the defendant on his way back to the saloon with the shotgun, and had armed himself. Defendant fired at him through the glass door, breaking the glass. Vanderworth returned the fire from the back room. Some of the State's witnesses say that the defendant fired again. Vanderworth continued firing, and defendant retreated out of the saloon. Vanderworth followed him, and fired two shots at him after he got outside. During the shooting defendant was wounded twice in the arm, one of the shots breaking his arm. Defendant then threw his gun down, and went into Hardeastle's drug store. The defendant's testimony shows that, when he came back with the gun, he was on his way then *Page 14 to a pasture, whither he had been sent by his father, who met him at home, and told him to go to a certain place to repair a fence; that he carried his gun along to shoot any rabbits or squirrels he might find on the way. Defendant's proof further shows that but one barrel of the gun was loaded, and that was with squirrel shot (the character of the shot with which the gun was loaded is corroborated by all the witnesses); that, on his way to the pasture, he diverged from his course, to get a drink of whiskey at the saloon, and his only purpose, as stated by himself, in going into said saloon, was to get a drink of whiskey. He testified that, as he approached the saloon and reached the gallery, he asked the bartender, Bill Harmon, if he could get a drink; that Harmon told him "Yes;" that he walked into the saloon, and had set his gun down on the butt, and was feeling in his vest pocket for the dime that he had borrowed with which to get a drink when he was fired upon; that this shot broke his arm; that whoever it was continued firing upon him; and that, as soon as he could, he returned the fire, to make a diversion, so he could get out, and, after he ran out of the saloon, some person continued to fire upon him; that he did not know who it was. And the testimony of the defendant shows that, when he threw his gun down, he said that somebody was shooting at him, and he was going to have him arrested. This is a summary of the main points in the testimony. In our opinion, the evidence tends strongly to show that, in the origin of the difficulty, defendant was subjected to an illegal arrest. We assume from the fact that the evidence shows that Singleton was town marshal of Lexington, and the testimony shows that Lexington had a mayor; that said town was incorporated, though there is no positive proof of this. There is no proof whatever that the town marshal had a writ for the arrest of the defendant. On the contrary, the evidence indicates that he was attempting his arrest on a verbal order or suggestion on the part of Vanderworth. Our statutes on the subject of arrest without warrant (Code Crim. Proc.) provide as follows:
"Art. 247. A peace officer, or any other person, may, without warrant, arrest an offender, when the offense is committed in his presence or within his view, if the offense is one classed as a felony, or as an 'offense against the public peace.' "
"Art. 248. A peace officer may arrest without warrant when a felony or breach of the peace has been committed in the presence or within the view of a magistrate, and such magistrate shall verbally order the arrest of the offender."
"Art. 249. The municipal authorities of towns and cities may establish rules authorizing the arrest without warrant of persons found in suspicious places, and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten or are about to commit some offense against the laws." Article 250 provides for the arrest without warrant by proper officer, "upon the representation of a credible person that a felony has been committed, *Page 15 and that the offender is about to escape, so that there is no time to procure a warrant."
We have none of the ordinances of the town of Lexington before us, so that we do not know what the authorities may have adopted under Article 249. But at any rate, in respect to this case, they could not have done more than have ordered the arrest of a person guilty of some felony or breach of the peace, or some person who threatens or is about to commit some offense against the laws. The question here presented is: Does the proof show that the defendant had committed or was committing a breach of the peace in the presence of the officer, Singleton? It will be noted that none of the witnesses, either for the State or the defendant, say that Woodward and the defendant were at the time engaged in a difficulty. The testimony is merely to the effect that they were engaged in a friendly scuffle. "It is true that in this scuffle they had done some damage to the property of Vanderworth. It is not shown, however, that he made any protest or request or did anything in order to prevent the scuffle in his saloon. The law does not authorize an arrest without warrant for mere injury to property; but it must be a breach of the peace. It may be that the boisterous conduct of the parties, Mundine and Woodward, may have ultimately led to a breach of the peace; but so far as the evidence here advises us, when Vanderworth left, they were engaged in a friendly scuffle, and, when Singleton appeared on the scene, they were still engaged in that same character of a struggle. If their conduct was boisterous, unquestionably the proprietor had a right to request them to desist. If they refused to desist, he could require them to leave his house; and, if they then refused to do so, he could eject them. But, under the evidence in this case, we do not believe out law would authorize a peace officer, or any other person, to arrest and imprison the defendant. Moreover, the evidence in this case shows that very violent means were used by the officer in effecting this arrest. This may have been necessary in order to accomplish it, and, if the officer had been authorized to make the arrest, his acts, under the circumstances, may have been justifiable; but, not being authorized, he was not justified in using the violent means he did, and the defendant had a right to resist this effort to arrest him, and to repel force by force. See, Miers v. State, 34 Tex.Crim. Rep.. Unquestionably, the treatment he received was calculated to arouse and excite his passions. In this case, both the illegal arrest and the violence used combined to excite such passion. If, at the time the arrest was made, he had slain his adversary, Singleton, ordinarily the homicide would not have been of a greater degree than manglaughter. Now, a majority of the witnesses state that about a half hour elapsed between this struggle and the subsequent assault of the defendant. One witness, we believe, places the time as much as an hour. But, whether it was a half hour or an hour, the question of adequate cause, and the question of passion, and the question of cooling time, were matters for the consideration of the jury, and could not be withheld from them by the court. We believe the *Page 16 court should have given, if not the charges asked by the appellant, a proper charge on aggravated assault, involving the question of cooling time. Appellant also complains of the charge of the court on self-defense, and the failure of the court to give the charges asked by him on this subject. The charge of the court on the subject of self-defense was as follows. "If you believe from the evidence that the defendant shot at said Fritz Vanderworth with a gun, and you further believe, that, at the time he did so (if he did), said Fritz Vanderworth had shot at the defendant, then you are charged that the defendant had the legal right to shoot said Fritz Vanderworth; and he would not be required to retreat in order to avoid the necessity of killing his assailant; and in such case you will acquit the defendant. In this connection you are charged that if you believe from the evidence, beyond a reasonable doubt, that the defendant went to the place of business of said Fritz Vanderworth, with a previously formed design to kill him, and by his acts, if any, then and there done, produced the occasion that caused the difficulty, if any, then the defendant cannot avail himself of the right of self-defense, though Vanderworth fired first; but if he so went with said design, but abandoned the same, then his right of self-defense would be complete, as above charged; or, if he so went with no design to kill said Vanderworth, then his right of self-defense would be complete, as above charged." If the court had simply stopped with his charge on self-defense, authorizing the defendant to rely on self-defense if Vanderworth fired at him first, or made the first hostile demonstration against him, appellant would have no cause of complaint. When, however, in connection with this charge, the court told the jury that if the defendant went to the saloon of the said Vanderworth, with the previously formed design to kill, and by his acts, if any, then and there done, provoked the occasion that caused the difficulty, that then the defendant could not avail himself of the right of self-defense — without defining or stating what character of acts on the part of the defendant would deprive him of the right of self-defense — he in effect, took away from the defendant all of the benefit that he might otherwise have derived from the charge which was given, on self-defense. What character of act would deprive the appellant of the benefit of self-defense is not stated. Certainly, it must be some hostile act directed toward Vanderworth for the purpose of bringing on a difficulty. Unquestionably, defendant went to the saloon of Vanderworth, armed with a gun, and this, according to the testimony of some of the witnesses, directly after he had threatened his life. Under the circumstances, this might be considered by the jury as the act, under the charge of the court, which would cut off the right of self-defense. Still, defendant says, in his testimony, that, notwithstanding these apparent circumstances of hostility on his part, he went to the saloon for a perfectly legitimate purpose — that is, to get a drink — and with no intent on his part to renew the difficulty. However much the court may have doubted his purpose or questioned his testimony, it was not within his province to *Page 17 withhold a phase of the case presented by his evidence from the jury. We are not discussing this case from the standpoint of Vanderworth. If he was on trial for killing the defendant for coming into his saloon under the circumstances, armed with a gun, a different question would be presented. But we must look at this case from the standpoint of the defendant; and if his testimony presents any defensive theory, however unreasonable it may appear, it is the duty of the court to give it in charge to the jury. In Williams v. State, 30 Tex.Crim. App., 429, and Maxwell v. State, 31 Tex.Crim. Rep., it was said that the right of self-defense is not impaired by mere preparation for the perpetration of a wrongful act, unheralded and unaccompanied by any demonstrations, or otherwise indicative of a wrongful purpose. And in Shannon v. State, 34 Tex. Crim. 5, it was held: "The fact that a person arms himself before going to deceased to ask an explanation of his conduct does not deprive him of the right of self-defense." And in Milrainy v. State, 33 Tex.Crim. Rep., it is held that "the fact that a person may know that his presence on the premises may be offensive to another does not deprive him of self-defense if his going to the premises is in good faith." In Bonnard v. State, 25 Tex.Crim. App., 173, it is held: "Where the defendant sought an interview with the deceased, for the purpose of demanding payment of a debt, and with no hostile intentions towards the deceased, and the deceased became angry, and an altercation ensued, in which the deceased drew a pistol, and assaulted the defendant with it in such a manner as to create in the mind of the defendant a reasonable apprehension of death or serious bodily injury, and, acting upon such reasonable apprehension, defendant fired the fatal shot, he was justifiable, on the ground of necessary self-defense." In Franklin v. State, 30 Tex.Crim. App., 628, speaking upon a question similar to the one involved in this case, the court uses the following language: "A party may have a perfect right of self-defense, though he may not be wholly free from blame in the transaction; the question being, what is the nature of the blame? If the blame or wrong was not intended to produce the occasion, nor an act which was under the circumstances reasonably calculated to produce the occasion or provoke the difficulty, then the right of self-defense would be complete, though the act may not be blameless." In said case the wrongful act was not specified, nor its character defined; and the court held that the charge was too general, and this should have been done. Now, if the charge of the court complained of had gone further, and informed the jury that the act, in order to destroy or nullify the right of self-defense, must be a hostile act, directed towards Vanderworth, and intended by the defendant to provoke and bring on a difficulty, it would have been a proper charge, and not subject to the criticism of the appellant. And such a charge, coupled with the charge given by the court on self-defense, would have rendered entirely unnecessary the many phases presented by the appellant on self-defense in the charges asked by him, and which were refused by the court. For the failure of the court to give *Page 18 to the jury in this case a charge on aggravated assault, and because of the error of the court in its charge on self-defense, the judgment of the lower court is reversed and the cause remanded.
Reversed and Remanded.