majority">Willson, Judge.

]?our distinct issues are fairly presented by the evidence, 1. An assault with intent to murder. 2. An aggravated assault. 3. A simple assault; and 4, self defense. The first issue was sufficiently and correctly submitted to the jury by the charge of the court.

As to the second issue, whilst the charge of the court in relation thereto is not literally correct, and is perhaps somewhat awkwardly expressed, still we think it is substantially correct, and there being no exceptions thereto, taken at the time of the trial, we are not called upon to revise immaterial errors therein.

As to the third issue, there was no charge whatever. There is evidence tending to show that defendant was striking, or attempting to strike, the injured party with a pistol, when the pistol was accidentally discharged, whereby the injury complained of was inflicted. If the pistol was used by the defendant to strike with only, the assault would not be aggravated, unless the evidence showed that when used in that manner it was a deadly weapon; or that, by means of such use serious bodily injury had been inflicted; or that the assault was committed with pre*548meditated design, and by the use of means calculated to inflict great bodily injury. (Penal Code, Art. 496.) There is no proof establishing either of these conditions. There, is no proof that the pistol was a deadly weapon when used to strike with, and in the absence of such proof it would be presumed that it was not that character of weapon when so used. When a gun or pistol is used to strike with, it is not necessarily a deadly weapon, but would be such, or not, according to its size, or the manner of using it, and its character is usually to be determined by the jury. (Hunt v. The State, 6 Texas Ct. App., 663; Wilson v. The State, 15 Texas Ct. App., 150.) If, therefore, the pistol when used to strike with was not a deadly weapon, and while being so used was accidentally discharged, whereby serious bodily injury was inflicted, and if the assault was not committed with premeditated design and by the use of means calculated to inflict serious biodily injury, and if no serious bodily injury was inflicted by striking with the pistol, then such assault would be of no higher grade than a simple assault; for “no act done by accident is an offense except in certain cases specially provided for, where there has been a degree of carelessness or negligence which the law regards as criminal” (Penal Code, Art. 44), as in the case of negligent homicide. (Penal Code, Art. 578, et seq.)

We think the court should have submitted the issue of simple assault to the jury under the facts of this case, but this omission in the charge not having been excepted to, and no additional charge presenting the issue having been requested by the defendant, we would not for this error disturb the conviction, because it does not appear to us probable that the defendant was injured or prejudiced by the failure of the court to submit said issue.

As to the fourth issue, the court charged upon it, but not fully and accurately. The evidence demanded a charge upon the law of self defense as embraced in Articles 570 and 572 of the Penal Code; and in connection with Article 570, Article 571 should have been given in charge. (Kendall v. The State, 8 Texas Ct. App., 569; Foster v. The State, 11 Texas Ct. App., 105; Jones v. The State, 17 Texas Ct. App., 602; Stevenson v. The State, Id., 618; Risby v. The State, Id., 518.) Again, the court omitted to give in charge Article 573 of the Penal Code, which was a material error. (Bell v. The State, 17 Texas Ct. App., 550; Arto v. The State, 19 Texas Ct. App., 126.) Upon this issue of self defense we think the charge of the court is materially defective, and its *549deficiency is of that character which is fatal to the conviction, although not excepted to at the time of the trial. Because of the error upon the issue of self defense, the judgment will be reversed and the cause remanded.

Opinion delivered June 19, 1886.

As to the right of the defendant to forcibly eject the injured party from the gambling room, we are of the opinion that he had no such right under the facts of this case, and cannot justify his assault upon that plea. The law knows no reasonable rules or regulations for the protection of a gambling room, and games played in violation of law.

In all other respects except those above metioned, we think the conviction is a legal one, but for the reason before named the judgment is reversed and the cause remanded.

Reversed and remanded.

Citation profile

How this case has been treated — in progress