85 S.W. 1058 | Tex. Crim. App. | 1905
The complaint charged an assault upon "Pierce Mount." The information alleged it to have been committed upon "Pierce Mounts." One of the grounds of the motion in arrest of judgment was based upon the variance between the names contained in the complaint, and that set out in the information: one being Mount and the other Mounts. We believe this point is well taken.
The court charged the jury in regard to self-defense: "You are instructed that every person is permitted by law to defend himself against any act of unlawful violence offered to his person; but in exercising his right of self-defense he is only permitted to use such degree of violence as is reasonably necessary to prevent or protect himself against such unlawful violence." And further if appellant acted in his necessary self-defense against an assault made by Pierce Mount upon him, or to prevent such an assault, and that he did not use greater force than was necessary to prevent such assault, they would find him not guilty. Exception was taken to this charge; and the following charge requested: "In passing upon the right of self-defense of defendant, you will look at the matter from the standpoint of defendant, and if it reasonably appeared to defendant, that an assault was about to be made upon him by Pierce Mount, or those acting with him, he had a right to strike in defense of his person, and if you so believe, you will find defendant not guilty." This was refused. This charge should have been given. The charge given by the court was too restrictive. A special charge was asked to cover this defect, which should have been given. If this case should again be tried, the court should instruct the jury to the effect that if they believed appellant was struck with a pistol and not with a slung-shot, they would acquit. The great preponderance of the evidence shows that he was struck with a pistol and not a slung-shot. The judgment is reversed and the cause remanded.
Reversed and remanded.
Henderson, Judge, absent. *46