Appellant was convicted of simple assault, his punishment being assessed at a fine of $5.
The testimony shows that appellant was a renter of the alleged assaulted party, R.C. Cleveland. Cleveland was driving by appellant's house in a wagon, stopped and called him to the road where he was and engaged him in conversation. It seems this conversation got a little heated. Cleveland charged appellant with planting too much cotton seed to an acre, and demanded that he readjust his planter so as to plant less. This led to some sharp words, and appellant either got in the wagon or up on it and caught Cleveland somewhere about the shoulder or person and picked up a singletree that was lying in the wagon. The State's theory was that he undertook to strike Cleveland with the singletree, and did strike him a glancing lick. This was denied by appellant. He admits, however, that he caught Cleveland by the shoulder and took the singletree away from him but did not use it, and threatened to strike him with his fist.
The court submitted the theory of aggravated assault as charged, and also simple assault, and the jury acquitted of aggravated assault and convicted of simple assault. Appellant's exceptions to the charge on aggravated assault under this record will not be considered because the jury acquitted of that offense, and only convicted of simple assault.
The court also charged appellant's theory of self-defense, we think, in a sufficient manner. It may be conceded that the language of Mr. Cleveland was of a provoking nature, and may have been calculated to bring about a disturbance of the peace or a difficulty, yet this would not justify appellant in making the assault. There must be something more than mere words. Such words may be given as a matter of extenuation but not as a justification. If Cleveland, as appellant contends, had reached to get a singletree with a view of hitting appellant, and appellant then grabbed him, and the jury so believed, they should have acquitted. These were questions for the solution of the jury, and we think they were sufficiently submitted in the charge. Under the facts we would hardly feel justified in reversing the judgment.
The judgment is, therefore, affirmed.
Affirmed. *Page 349
ON REHEARING. December 4, 1918.