Rater v. State ( 1948 )

This is a conviction for simple assault, with punishment assessed at a fine of $5.00.

The injured party, Shoemaker, and appellant met on the streets of Bellevue. Shoemaker claimed that appellant had accused him of stealing a wolf trap, to which appellant replied "I tracked you and it was your tracks." Shoemaker called him a liar, and the fight started. According to Shoemaker's testimony they fought about four rounds and stopped because "we had both just give out." After the fight stopped and while Shoemaker had his head turned, appellant kicked him between the legs with his foot.

It is for this alleged assault after the fight had stopped that appellant stands here convicted.

According to appellant's theory, what he did was in defense against the attack of appellant. He insisted that the only time he kicked Shoemaker was when Shoemaker was attacking him. We note, however, that appellant, himself, refers to the difficulty as a fight and says that they fought several rounds before the fight was finally stopped.

The trial court submitted self-defense in his charge, which is criticised by appellant.

We fail to see wherein self-defense was in the case. According to appellant's own admission the fight was mutual and was divided into rounds. While it is true that Shoemaker started the fight, the evidence shows that appellant entered into it. The right of self-defense is not accorded against acts committed in mutual combat. Branch's P. C., Sec. 1960. Foreman v. State, 33 Tex.Crim. R., 26 S.W. 212.

The charge which was given appears, however, to have followed that as approved in Neyland v. State, 79 Tex.Crim. R.,187 S.W. 196.

No reversible error appearing, the judgment of the trial court is affirmed.

Opinion approved by the Court.

ON APPELLANT'S MOTION FOR REHEARING.