Conviction is for aggravated assault, punishment assessed at one year in jail and a fine of $500.00.
Appellant was indicted for the murder of Trammell Cason by striking, kicking and beating him and by beating his head against a cement floor.
The court submitted the issue of murder with and without malice and aggravated assault, and also charged upon provoking the difficulty. Appellant excepted to the instruction upon provoking the difficulty upon the ground that the evidence failed to raise such issue. We are not in accord with appellant in this contention. As raising this issue the State relies upon the act of appellant in going to where Cason was and calling him a "damn liar," or saying to Cason if he told a third party certain things "It is a damn lie," whereupon Cason seized a large S wrench and struck appellant on the head with it, making a considerable cut and causing much blood to flow. Appellant then caught hold of the wrench and in the struggle for possession of it Cason was thrown to the floor, but retained his hold on the wrench. In his effort to get possession of the wrench appellant would put his foot in Cason's face and push his head back against the floor. Some witnesses testified that appellant kicked Cason in the face. It was not thought at the time that Cason was seriously injured, but he became unconscious two or three hours after the fight and died some four days later from concussion.
Appellant's contention that the issue of provoking the difficulty is not raised is weakened by the fact that some thirty minutes before the fatal encounter Cason had called appellant a "damn liar" which caused appellant to assault Cason. In the event of another trial for aggravated assault we call attention to the following cases. Coleman v. State,49 Tex. Crim. 355, 91 S.W. 783; Edgerton v. State, 68 S.W. 678; State v. Briggs, 21 S.W. 46; Waller v. State, 90 Tex. Crim. 257,234 S.W. 534; Shaw v. State, 73 S.W. 1046.
The trial court gave a very admirable charge save in one instance, and the many exceptions to it seem without merit except the one complaining of paragraph eight of the charge wherein the jury was told that if Cason attacked appellant with *Page 212 a wrench which was reasonably calculated to inflict death or serious bodily injury it was presumed that Cason intended to kill or seriously injure appellant, and that appellant under such circumstances would have the right to kill Cason unless Cason was acting in his "own self-defense against an unlawful attack, if any, upon him by the defendant." That part of the charge quoted was objected to as being improperly incorporated in the instructions on the presumption from the use of a deadly weapon by Cason, specifically upon the ground that the evidence did not raise an issue of appellant attacking Cason at the time of the fatal difficulty. We think the court should have responded to this exception. The evidence does show that appellant made an assault upon Cason some thirty minutes before the fatal difficulty, but the parties had then been separated. We may have overlooked some evidence, or failed to properly appraise some, but have discovered none raising an issue of an attack by appellant at the time Cason struck with the wrench.
The facts present a set of circumstances much to be deplored, and impress us that this unfortunate event would not have happened had it not been both parties were under the influence of intoxicants.
For the error pointed out the judgment is reversed and the cause remanded.