Weddington v. State , 105 Tex. Crim. 648 ( 1926 )

The appellant was convicted of an aggravated assault and his punishment assessed at a fine of $250.

At a former term this case was affirmed. Appellant in due time filed his motion for rehearing and asked for a writ of certiorari to perfect the record. The case will now be considered on the record as perfected.

The evidence shows that prosecutrix and her husband and her mother went to the office of appellant and while there she was assaulted by appellant. The theory of the state was that this was done without any provocation on the part of the prosecutrix, and that appellant struck her, bruising her body and tearing her clothes considerably. The theory of the appellant was that the prosecutrix, together with her mother and her husband, came to his office and entered into a heated discussion with him and his wife; that while in his office prosecutrix cursed and abused the wife of appellant, applying to her opprobrious epithets, calling her, among other things, a "God damned whore." That he attempted to remove her from his office, but was prevented from doing so by the husband of the prosecutrix, who was the son of appellant. That he never struck the prosecutrix or inflicted upon her any injury whatever. Appellant contended that he had a right to use such force as was necessary to remove her from his office or place of business.

The learned trial judge failed to present to the jury in his main charge appellant's defensive theories in the case; the charge was excepted to for this omission and the appellant requested an affirmative presentation of these theories as shown by his special charges 1 and 2, both of which were refused, as appears from bills of exception 1 and 2. The issues of fact should have been passed on by the jury under proper instructions from the court. These issues were embraced in both of appellant's special charges requested and refused. Savage v. State, 244 S.W. 1002.

For the error of the trial court in not giving appellant's special charges Nos. 1 and 2, both of which presented clearly and affirmatively appellant's defensive theories, the motion for rehearing is granted and the judgment is reversed and the cause remanded.

Reversed and remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.