¶1Appellant was convicted of assault with intent to murder, and his punishment assessed at confinement in the penitentiary for a term of two years. *452
¶2There are no bills of exception in the record. Appellant urges various objections to the charge of the court. We do not deem any of them well taken, except that portion of the charge which presents the law of provoking the difficulty. The evidence shows that defendant was the son-in-law of the prosecutor; that defendant had separated from his wife, and the wife had returned to her father's to live. Defendant called on her repeatedly, to see his children; and on the day of the offense here charged, prosecutor returned home and found defendant there, who immediately raised a disturbance; and prosecutor and his wife acting together forcibly ejected defendant from the house. He went off 75 or 100 yards, and in a short while returned and immediately began firing at and chasing prosecutor. He wounded him with the pistol, after shooting at him several times, according to the testimony of the State. However, appellant insists that he did not attempt nor try to kill or wound his father-in-law, but was merely shooting and running after him to scare him. We do not think this evidence suggests the issue of provoking the difficulty. If appellant had killed or injured his father-in-law during the difficulty that arose first at the house it might be that the evidence would suggest that issue, but that difficulty ceased. Appellant left the house, went off some distance as stated, got a pistol, and in a short while — the exact length of time is not stated — returned and voluntarily began to shoot at prosecutor. This is substantially the State's case, as well as defendant's defense. The court charged on the law of self-defense. We see no evidence suggesting this theory, since appellant did not testify to anything suggesting it; nor does the record disclose any evidence authorizing such a charge. The record before us shows that the court charged on aggravated assault. There is some evidence suggesting this isue. In view of this fact we think the court erred in charging on provoking the difficulty, since the jury might appropriate said charge for the purpose of enhancing appellant's punishment and convict him of assault with intent to murder; whereas, if the court had not given the erroneous charge on provoking the difficulty the jury might reasonably have convicted appellant of aggravated assault. In other words, we think the charge injured the rights of appellant, and probably caused the jury to convict him of assault with intent to murder, instead of aggravated assault. We have heretofore held that, where the issue of provoking the difficulty is charged upon, and there is no self-defense in the case, it is not reversible error to charge on provoking the difficulty (Abrams v. State. 36 Tex.Crim. Rep.); but where the issue of assault with intent to murder and aggravated assault are both suggested by the evidence, a charge on provoking the difficulty might be harmful to defendant and cause the jury to convict him of the higher grade of the offense then *453 on trial. We accordingly hold that the judgment must be reversed on account of the fact that the court charged on provoking the difficulty.
¶3The judgment is reversed and the cause remanded.
¶4Reversed and remanded.