Appellant was convicted of an aggravated assault, and his punishment assessed at a fine of $25. *Page 121
Appellant excepted to the action of the court refusing to permit him to prove that some time prior to the alleged offense the prosecutor had killed one of the yard dogs of appellant's mother, and that witness notified prosecuting witness, McCreary, not to come through or upon her premises again. Appellant states that his purpose, by this testimony, was to show malice and ill will on the part of prosecuting witness towards defendant and his mother's family generally, as well as to show the wanton and reckless character of prosecuting witness. Appellant's line of defense was twofold. If prosecutor, when he fired the second shot, was wantonly firing at his mother's dog, he would have the right to protect the dog from such wanton assault; and if he fired at prosecutor on this account, he would not be punishable. Or if, when prosecutor fired the second shot in the direction of appellant and his mother, and appellant reasonably believed that one or both were in danger of life or serious bodily injury, then he would have the right to shoot in self-defense or defense of his mother. The proof offered, that prosecutor had previously shot a dog belonging to appellant's mother, and that he had been forbidden to come on the premises, would be evidence tending to show that he was a trespasser on this occasion, and would tend to shed light on appellant's conduct from his standpoint, suggesting that he believed himself, or his mother, or her property was in danger at the time from a trespasser who had been forbidden to come upon the premises; thus reinforcing his plea of self-defense or defense of property. Accordingly we hold that this testimony should have been admitted. The court's charge gave the full benefit of self-defense and of his theory of the case arising from the evidence, as we view the facts.
No special requested charges were submitted; and this being a misdemeanor case, before appellant can complain, he must prepare and present such special charges, and then, by bill of exceptions, show that the court refused to give the same.
For the error discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.