Appellant insists that in failing to instruct the jury upon his right to defend against an attack not of such gravity as to evince an intent to kill or do serious bodily injury, the court committed error. Clearly, when one is assaulted, the right of self-defense extends to the right to repel the assault although it does not pretend death or serious bodily injury, and an instruction to that effect becomes appropriate when applicable to the facts in evidence. This is recognized in the original opinion. As we interpret the evidence in the present instance, however, the only attack or assault to which the appellant was subjected was that which he described in his own testimony, which was an assault threatening death or serious bodily injury. According to his testimony, when he struck the injured party with the ax, the latter had a gun in his hand, was in close proximity to the appellant, and by his manner manifested a purpose to shoot the appellant with the gun. The State's evidence, coming from the injured party and other witnesses, exculpated him from any attack upon the appellant. It occurs to us that if, under the circumstances revealed by the record in the present instance, there was a reason for instructing the jury that the appellant had a right to protect his person against an assault of lesser violence than one which threatened death or serious bodily injury, such a charge should have been accompanied by an instruction that in exercising the right to so defend himself, he would not be authorized to use excessive force. On the whole record, we are impressed with the view that there is no such fault in the charge as would, in view of Art. 666, C. C. P., 1925, justify a reversal of the judgment. In that statute it is declared in substance that a fault or omission in the charge which is not calculated to injure the accused or deprive him of a fair and impartial trial, shall not be made a ground for a reversal of the conviction. Application of this statute has been made in numerous instances as appears from Vernon's Ann. Tex. C. C. P., Vol. 2, p. 293.
The motion is overruled.
Overruled. *Page 337