Appellant .was charged by indictment with aggravated assault and battery. A jury was waived and the case submitted upon the evidence to the county judge, who found the defendant guilty and assessed his punishment at a fine of $50.
We have given the evidence as set forth in the statement of facts a most careful consideration, and our conclusion is that it does not support the judgment. Defendant was an old man; he was assaulted and struck by a-stout, active and able-bodied young man, of twenty-seven years of age, and only resorted to and used the pitchfork after he had reason to believe that his assailant was about to draw the knife with which he subsequently, whilst they were engaged, inflicted a cut upon him. Under all the circumstances, the means used by him and manner of its use (viz., the pitchfork) in resisting the assault made upon him were not disproportioned to the character of the assault, or so excessive as to make him liable for an assault himself in resisting it as he did. We cannot believe that he exceeded the bounds of legitimate self-defense and prevention, and the judgment is therefore reversed and the cause remanded for a new trial.
Reversed and remanded.
Opinion delivered October 11, 1882.