On Motion for Rehearing.
MORROW, P. J.The court was requested by the appellant to give to the jury the following special charge, and complains of its refusal:
“G.entlemen of the Jury: At the request of the defendant I charge you that although you may-believe from the evidence beyond a reasonable doubt, that the defendant, Glenn Jones, did on the 9th day of April, 1928, make an assault on the prosecuting witness, Dave Standifer, by catching him and taking from him or assisted in taking from him a pistol, *1069and that after he procured the pistol he quit the affray, or if you have a reasonable doubt as to whether or not he did quit at that time, and only stood by to see a fair fight, then you will find the defendant not guilty of aggravated assault and consider only the remaining charge.”
Article 662, Code Or. Proc. 1925, reads thus:
“The court is not required to charge the jury in a misdemeanor case, except at the request of counsel on either side. When so reqi^ted he shall give or refuse such charges, with or without modification, as are asked in writing.”
There is some confusion in the interpretation of this article in connection with other articles of the statute, notably article 658, requiring that all objections to the charge shall be made in writing before it is read to the jury, and article 666, declaring that.all objections to the charge and the refusal or modification of special charge shall be made at the time of the trial.
In the case of Simpson v. State, 87 Tex. Cr. R. 277, 220 S. W. 777, 778, citing many precedents, there is found the following language:
“This, then, being a misdemeanor, errors in the charge, unless fundamental, must not only be excepted to, but special charges correctly presenting the matter complained of must be presented, and, if refused, such refusal must be excepted to and brought here by proper bills of exception.”
In that case the complaint was that the charge on aggravated assault was not accurate and did not go into sufficient detail in stating the elements of the offense. The effect of the criticism of the charge was to assert that the court, in charging on aggravated assault, had inaccurately stated or applied the law. Under such circumstances the alleged faults in the charge would not be reviewed on appeal, in the absence of specific exception to the charge pointing out the defect, and in addition thereto a special charge presented correctly stating and applying the law. In a misdemeanor case the writing of a charge is not required of the judge. In the present case the criticism is not that in the charge there was an inaccurate statement of the law. The complaint is that the court omitted to instruct the jury touching the rights of the accused under a phase of the evidence presenting what the appellant claims was an affirmative defense. The record is deemed sufficient to present for review the question mentioned.
From the appellant’s testimony the following appears: He was 20 years of age, and weighed 178 pounds. He and his brother met and in an automobile designedly followed Standifer, the injured party, as he was on his way home at meal time. Overtaking Standifer, the appellant, who was on the running board of the car, got off and seized him. As the car was stopped, Standifer fled, but was thrown to his knees by the appellant, at which time Fred Jones took hold of Standi-fer. Appellant took a pistol from Standifer’s pocket; got up and said, “All right, Fred, I will see that we have a fair fight,” after which he stood near while Fred assaulted Standifer.
Eyewitnesses other than the injured party, describing the assault, stated that, after chasing Standifer, they knocked him down; that Fred got astride him, and began hitting him with his fist; that appellant fell on his knees, and began hitting him. Standifer testified that he was held by the appellant while his brother Fred struck him with his fist and stomped him with his feet. This was after he was down and while both were on him.
The requested charge was in conflict with that part of the court’s charge on the law of principals as defined in article 66, Pen. Code 1925, which declares, in substance, that one who is present, and, knowing of the unlawful intent of another, aids him by his acts or encourages him by his words, is a principal. A charge on that phase of the law of principals is manifestly called for, as the appellant was the first one to assault Standifer, and, according to his own testimony, after disarming him, he stood by while Standifer was beaten by Fred Jones. The court, did not charge on that phase of the law of principals embraced in article 69, Pen. Code 1925, which is in substance to the effect that one who agrees to the commission of an offense and is present when it is committed by another is a principal. To have given the charge in question would have been in conflict with that phase of the charge relating to article 66, supra, and entirely ignored the evidence touching article 69, supra. The conduct of the appellant furnished ample evidence to raise the issue of a conspiracy to assault Standifer, and, that being present, he was responsible for all that was done by his brother. See Hays v. State, 90 Tex. Cr. R. 192, 236 S. W. 463, and authorities cited. In refusing to read the special charge to the jury, the court, we think, was not in error.
Immediately before following Standifer and making the assault, a “tire tool” was borrowed. It was a part of an automobile spring, made of metal, and was more than an inch wide and about two feet long. This was placed in the automobile in which Stan-difer was pursued. Appellant claims that he told his brother it could not be used in the fight. The complaint of the reception in evidence of the testimony quoted with reference to the borrowing and having possession of the tire tool we think was properly received as a circumstance bearing upon the intent of the appellant and his brother in their preparation for the assault. ;
The motion for rehearing is overruled.