In this case the indictment was for murder of the second degree, the charge being that appellant .“did, unlawfully, and with his implied malice aforethought, kill *355and murder Samuel Wooldridge, by then and there striking, beating, bruising and wounding him, the said Samuel Wooldridge, with a certain stick,” etc. At the trial had upon this indictment, appellant was convicted of aggravated assault and battery, the penalty- assessed being a fine of one thousand dollars, and eighteen months imprisonment in the county jail.
1. It is contended that, under the indictment for murder of the second degree in this case, a conviction can not be had for aggravated assault and battery, because the essential elements of the latter offense are not set out nor embraced in the charge of murder of the second degree. This is not a new question in this State. It came up directly in Green’s case, 8 Texas Court of Appeals, 71, and it was then held that, under the provisions of article 714 of the Code of Criminal Procedure, such a conviction could be sustained, it being expressly provided that murder includes assault with intent to murder, and that assault with intent to commit any felony includes all assaults of inferior degree.
Independently of this article 714, we are further of opinion that the indictment in this case is sufficient, even in setting forth the offense of an aggravated assault and battery, under the seventh subdivision of article 488 of the Penal Code, which makes an assault aggravated “when a serious bodily injury is inflicted upon the person assaulted.” How, the indictment charges that the appellant killed and murdered the deceased, by “striking, beating, bruising and wounding him with a stick.” It is clear that he could not have done this without inflicting serious bodily injury upon him. It is true, the exact statutory words which we have quoted are not used in the indictment, but the substituted words are, if not equivalent, certainly of more extensive signification than the statutory words, and this is all that is required. (13 Texas, 33; Kerry v. The State, 17 Texas Ct. App., 180; Lantznester v. The State, 19 Texas Ct. App., 320; Clark’s Texas Crim. Law, p. 420 and note.)
2. It seems that, a short time previous to the homicide, the appellant and the deceased had some misunderstanding regarding their business transactions, but it does not appear to have ripened into hostility. At all events defendant’s conduct towards deceased, just prior to the fatal difficulty, indicated a desire upon his part to avoid further trouble with him. There is a conflict in the evidence of the only two witnesses who profess to have seen what actually occurred immediately at the rencontre—the State’s witness making the defendant the aggressor who *356struck the first blow, and the witness for the defense swearing that when “ defendant told deceased of the rules which his (defendant’s) father had adopted with regard to his business, in connection with the ginning of cotton, and had said: ‘You go to the house and see my father,’ Wooldridge (deceased) said: ‘God d—n the rules, your father and you, too!’ and made at Mr. Bean and struck him a glancing lick on the shoulder with a scoop. Mr. Bean (defendant) then turned and picked up a stick and came back towards Wooldridge, who was then on the platform of the scales. Defendant stepped towards Wooldridge and Wooldridge struck again at defendant with the shovel or scoop, who knocked the lick off with the stick. Wooldridge then stepped backward, striking at the defendant with the scoop and defendant striking with his stick. Several licks were passed before either was struck again, each warding off the other’s licks. They backed in this position—Wooldridge backing and striking with the scoop and defendant striking with his stick—until Wooldridge came under the elevator, when defendant hit Wooldridge with his stick and Wooldridge fell to the ground. As soon as Wooldridge fell defendant raised his stick and turned to Mr. Vaughan and said: ‘ If you don’t drop your scoop I will knock you down. ’ Vaughan was standing close to Wooldridge and had his scoop in a stiiking position.” This witness stated that after defendant was first struck by Wooldridge defendant turned and went ten or twelve steps and picked up the stick and returned to the place of conflict. From first to last it appears that but very few minutes elapsed from the commencement to the end of the difficulty.
Upon this state of facts, in its application to the law of self defense, the court, amongst other matters, thus instructed the jury in the seventeenth paragraph of the charge: “If Wooldridge attacked defendant in such manner and with such means as reasonably indicated an intention on the part of Wooldridge to take defendant’s life, or to do him some serious bodily injury, yet, if before the fatal blow was struck, such appearances of danger to defendant had ceased, and he, defendant, afterwards renewed the difficulty with the intention of taking Wooldridge’s life, or doing him some serious bodily injury, then defendant, in such subsequent acts, would not have the right of self defense. But if defendant renewed the difficulty (if you find he did renew it) with no intention of killing Wooldridge, or doing him some serious bodily injury, then you will apply the rule of law ex*357plained in the fourteenth sub-division of this charge” (which was as to aggravated assault where the homicide was with an instrument not in its nature calculated to produce death, and under circumstances showing no intention to kill and no self defense.) “If you find that the rencontre, from the first acts of violence, was continuous and without actual cessation till the fatal blow was struck, then the rule of law stated in this subdivision of the charge would not apply.” In connection with this latter proposition, the court should have instructed in substance that if there was no cessation from the time the first blow was stricken, and deceased struck the first blow with the iron scoop, and defendant struck with the stick in his own self defense, then he would be guilty of no offense whatever in law.
■ Again, in connection with this seventeenth paragraph, and as part of the law of the case, the court should have instructed the jury, in substance, that if defendant was assaulted on his own premises, or at his own place of business, with an instrument calculated to inflict upon him serious injury, and he retreated and picked up the stick, an instrument of like character, with which to defend himself, and, having returned to the scales, where he had a right to go, with no intention of himself renewing the conflict, and deceased again assaulted him with the iron scoop, then, and in that event, defendant, in his necessary self defense, had the right to use the stick in repelling such second assault upon him, and if, in doing so, he killed deceased, then, under such circumstances, he would be guilty of no offense, and they should acquit him.
3. Another complaint is, as we think, also justly urged to the charge of the court. It is that the court restricto 1 the defendant’s right of self defense to a combat with, and appearances of danger from the deceased alone. It is shown by the evidence that the deceased and the State’s witness Vaughan were together interested in the getting of the cotton seed which was the cause of the difficulty. Vaughan is directly connected with deceased in the matters and circumstances attendant upon the transaction. He is also armed, as was the deceased, with an iron scoop, and, according to the testimony of defendant’s witness, defendant, during the conflict, is using his stick to “ward off both Wooldridge and Vaughan,” and, when the former has been felled to the ground, defendant turns upon Vaughan, who has his scoop raised in a striking position, and tells him: “If you do not drop your scoop I will knock you down.” The *358charge of the court was excepted to because it did not set forth clearly the doctrine of self defense as applied to the two assailants, Wooldridge and Vaughan. We are of opinion that the exception is well taken. (McLaughlin v. The State, 10 Texas Ct. App., 340; Cartright v. The State, 16 Id., 474; Jones v. The State, 20 Id., 665.)
Opinion delivered April 18, 1888.Because the charge of the court did not sufficiently submit to the jury the law of the case in the particulars pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.