Davis v. State ( 1915 )

Cook,' J.,

delivered the opinion of the court.

Appellant was tried upon an indictment charging him with an assault and battery with the intent to kill and murder. The jury returned a verdict finding him guilty of assault and battery. The evidence was in sharp conflict ; that of the state establishing his guilt, while his own testimony, if believed, entitled him to a verdict of not guilty. There are several assignments of error, but we will consider one only.

The theory of defense, established by his evidence, was that the person assaulted was the aggressor, and that appellant acted throughout in necessary self-defense. Appellant testified that the person assaulted first made an assault upon him with a dangerous weapon — a chair— and that he struck in self-defense. Among the persons present-.was the wife of the party appellant is charged with assaulting; and appellant testified that,'when her husband advanced upon appellant with the chair, his wife cried, “Don’t Charlie; don’t do that!” Appellant offered to-prove by another witness that this witness was about two hundred yards from the scene of the battle, and-heard the injured man’s wife cry, “Don’t Charlie, don’t!” The proof shows that “Charlie” was her husband’s name. Upon the objection of the state, this testimony was not permitted to go to the jury.

We think this evidence was pertinent and competent, and its rejection by the court, on the facts of this case, was reversible error.

. Reversed and remanded.