¶1Conviction is for aggravated assault, punishment assessed at one year in jail and a fine of $500.00.
¶2Appellant was indicted for the murder of Trammell Cason by striking, kicking and beating him and by beating his head against a cement floor.
¶3The court submitted the issue of murder with and without malice and aggravated assault, and also charged upon provoking the difficulty. Appellant excepted to the instruction upon provoking the difficulty upon the ground that the evidence failed to raise such issue. We are not in accord with appellant in this contention. As raising this issue the State relies upon the act of appellant in going to where Cason was and calling him a "damn liar," or saying to Cason if he told a third party certain things "It is a damn lie," whereupon Cason seized a large S wrench and struck appellant on the head with it, making a considerable cut and causing much blood to flow. Appellant then caught hold of the wrench and in the struggle for possession of it Cason was thrown to the floor, but retained his hold on the wrench. In his effort to get possession of the wrench appellant would put his foot in Cason's face and push his head back against the floor. Some witnesses testified that appellant kicked Cason in the face. It was not thought at the time that Cason was seriously injured, but he became unconscious two or three hours after the fight and died some four days later from concussion.
¶4Appellant's contention that the issue of provoking the difficulty is not raised is weakened by the fact that some thirty minutes before the fatal encounter Cason had called appellant a "damn liar" which caused appellant to assault Cason. In the event of another trial for aggravated assault we call attention to the following cases. Coleman v. State,49 Tex. Crim. 355, 91 S.W. 783; Edgerton v. State, 68 S.W. 678; State v. Briggs, 21 S.W. 46; Waller v. State, 90 Tex. Crim. 257,234 S.W. 534; Shaw v. State, 73 S.W. 1046.
¶5The trial court gave a very admirable charge save in one instance, and the many exceptions to it seem without merit except the one complaining of paragraph eight of the charge wherein the jury was told that if Cason attacked appellant with *212 a wrench which was reasonably calculated to inflict death or serious bodily injury it was presumed that Cason intended to kill or seriously injure appellant, and that appellant under such circumstances would have the right to kill Cason unless Cason was acting in his "own self-defense against an unlawful attack, if any, upon him by the defendant." That part of the charge quoted was objected to as being improperly incorporated in the instructions on the presumption from the use of a deadly weapon by Cason, specifically upon the ground that the evidence did not raise an issue of appellant attacking Cason at the time of the fatal difficulty. We think the court should have responded to this exception. The evidence does show that appellant made an assault upon Cason some thirty minutes before the fatal difficulty, but the parties had then been separated. We may have overlooked some evidence, or failed to properly appraise some, but have discovered none raising an issue of an attack by appellant at the time Cason struck with the wrench.
¶6The facts present a set of circumstances much to be deplored, and impress us that this unfortunate event would not have happened had it not been both parties were under the influence of intoxicants.
¶7For the error pointed out the judgment is reversed and the cause remanded.
¶9The State has filed a motion for a rehearing herein based mainly upon the statement in the original opinion, as follows:
¶10"We may have overlooked some evidence, or failed to properly appraise some, but have discovered none raising an issue of an attack by appellant at the time Cason struck with the wrench."
¶11The State's motion takes us to task relative to such statement, and quotes rather liberally from the testimony to show us an error therein.
¶12The charge objected to, if called for by the facts, is undoubtedly a correct one, and we have so held it to be in other cases, the latest being Squyres v. State,174 S.W.2d 601, and if such a charge was called for by the facts, then we were mistaken in our original opinion. *213
¶13As showing facts upon which such a charge could be based, we are cited, among others, to the following testimony of J. W. Chapman:
¶14"I saw Seborn Darwin after that, he was coming from the direction of the front of Marvin Floers' garage going towards the pick-up. He was just walking back that way, he was not going too fast, just a moderate walk. He did not have anything in his hands then, but later I saw a knife in his hand. That was after he came to the pick-up, and I started to walk off, I saw the knife in his hand and it was about half open, and he already was at the pick-up, then he did not circle the pick-up, but came straight to it. Mr. Cason was on that side of the pick-up, towards the back of the garage, talking to some man __________ Darwin was coming back that way and the cab was between him and Trammel Cason, and it looked to me like Darwin was keeping the cab of that pick-up between them, and about the time Darwin got to the pick-up, Mr. Cason and this man stopped talking, and the man went out towards the filling station, __________ Mr. Cason then went toward the back of the pick-up; the front of the pick-up was towards Mayes Street, and the back was toward the other wall of the garage; and Cason startedtowards the back of the pick-up, and then Darwin turned andwent towards the back of the pick-up, meeting Cason . . . . . I was going towards the front of the garage and when I looked back they were scufflling over a big 'S' wrench, and had that wrench in the air up over them, and both of them had hold of it. … Darwin had the knife in his hand half-open when he started towards Cason. Before he got to Cason he shut the knife up and put it in his pocket."
¶15It was also shown that there were two previous encounters between appellant and the deceased, in one of which appellant threw or pushed the deceased against the bumper of a car; again, they were quarrelling, and looked like they were going to fight; and then the third fatal encounter, all of which occurred in less than thirty minutes.
¶16We do not feel willing to say that there was no testimony here that raised an issue of self-defense upon the part of the deceased. We think the testimony raised such issue, and being thus convinced, we think the charge complained of was not in error.
¶17Had Mr. Cason survived the difficulty and Mr. Darwin been the participant who met his death, then could it be said that Mr. *214 Cason was not entitled under the facts to an issue of self-defense?
¶18Cason was less powerful than Darwin, so appellant said; he had been worsted in one encounter with appellant; again another quarrel had arisen wherein appellant had exhibited a knife, so Cason said, and again Darwin came across the street to where Cason was and with a knife in his hand accosted Cason and said: "If you said you paid me, you are a damn liar. How do you like that?" Under such circumstances if Cason was upon trial for the killing of Darwin, we think the court would have been called upon to charge upon Cason's right of self-defense.
¶19There should some weight at least be placed upon Darwin's conduct just before this last difficulty, and the trial court recognized such fact when he charged upon a provocation of the difficulty, and to that extent took away from appellant his perfect right of self-defense.
¶20We think the testimony raises the issue of self-defense upon the part of the deceased, and therefore the State's motion is granted, the judgment of reversal is set aside, and the judgment is now affirmed.
¶21HAWKINS, Presiding Judge, dissents.