Govan v. State , 1929 Tex. Crim. App. LEXIS 907 ( 1929 )

CHRISTIAN, J.

The offense is aggravated assault; the punishment being assessed at a fine of $100 and confinement in the county jail for six months.

Appellant and the injured party had been engaged in a card game. Appellant and his witnesses testified that the injured party had obtained some of appellant’s money by the use of fraud. After the game terminated, the injured party was sitting near the fire. Appellant walked up to him, and demanded that he return his money to him. The injured party refused to comply with the demand, and appellant struck him on the head with a poker, crushing his skull.

There was no issue of self-defense in the ease; appellant’s theory being that he had the right to assault the injured party in order bo regain his money. He sought to have the jury instructed that if they believed that the injured party had taken his money and refused to return it to him and that he struck the injured party with no other intent than to try to regain his property he should he acquitted. Appellant was not entitled to this instruction. He may have had a perfect legal right to the money in the possession of the injured party, hut he had no right to commit an assault in an endeavor bo repossess himself of said money. Carrel v. State, 77 Tex. Cr. R. 344, 178 S. W. 331.

In Cole v. State, 104 Tex. Cr. R. 533, 286 S. W. 204, 205, 207, we find language as follows: “If their money was taken from them by means of fraudulent dice, as contended by the appellants, the person so taking it would be guilty of theft by false pretext, and the title to the money thus acquired would not pass. Gibson v. State, 85 Tex. Cr. R. 462, 214 S. W. 341; Gordon v. State, 85 Tex. Cr. R. 641, 214 S. W. 980. Hnder such circumstances, in endeavoring to repossess themselves of money stolen from them, they would not be guilty of robbery though they might be guilty of an unlawful assault. See Barton v. State, 88 Tex. Cr. R. 368, 227 S. W. 317, 13 A. L. R. 147; Fisher v. State (Tex. Cr. App.) [102 Tex. Cr. R. 229] 277 S. W. 386 [42 A. L. R. 740].”

The court should not have charged the law of self-defense, as the issue was not raised. However, the facts show without controversy that appellant committed the assault on the injured party, and the error does not call for a reversal. Branch’s Annotated Penal Code of Texas, § 1969; Hicks v. State, 75 Tex. Cr. R. 461, 171 S. W. 755, 761.

Appellant contends that the evidence fails to disclose that the poker used by him in striking the injured party was in the manner of its use a deadly weapon. We are unable to agree with this contention. Not only did the injured party sustain serious bodily injury, but the size of the poker as disclosed by the witnesses justified the finding by the jury that, in the manner in which it was used, it was a deadly weapon.

Failing to find reversible error, the judgment is affirmed.

PER CURIAM. 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.