¶1Appeal in this case is from a judgment of conviction for an aggravated assault, the penalty being assessed at a fine of $250.
¶2The charge of the court to the jury was excepted to, and special requested instructions were asked for defendant, and were refused. We are of opinion that some important portions of the charge were erroneous, and are also of opinion that the greater portion, if not all, of the requested instructions should have been given. Under the *426evidence it is quite probable, if not entirely certain, that Noah, the party charged to have been assaulted, was out of reach and danger from the shots of defendant, when he fired his pistol. The court charged the jury as to the statutory definition of an assault (Penal Code, art. 484), but failed to explain what is meant by the terms “ coupled with an ability to commit,” as used in the statutory definition. Such an explanation was peculiarly called for by the facts of this case, and defendant’s special instruction No. 2, which was refused, attempted to supply this omission in the general charge, and said instruction was, moreover, a literal copy of article 489, Penal Code. (Jarnigan v. The State, 6 Texas Ct. App., 465.)
¶3Other portions of the charge are objectionable, but we do not feel called upon to discuss them. Suffice it to say that defendant’s special instructions embodied the law with reference to all legitimate phases of the case as shown by the evidence, and if they had been given entirely, without any further or additional charge from the court, as a charge they would have been sufficient.
¶4Because the charge was erroneous, and because the special instructions should have been given, the judgment is reversed and the cause remanded.
¶5Reversed and remanded.
¶6[Opinion delivered June 10, 1885.]