Powell v. State

Appellant was convicted of aggravated assault and battery, and his punishment fixed at one month in the county jail, from which he appeals.

The agreed statement of facts shows, that appellant and one Bob Blanchard got into an altercation, in which axe helves were used, appellant bringing on the difficulty by slapping Blanchard in the mouth. Blanchard seized an axe helve, which was taken from him by appellant, and while trying to get another, appellant, to prevent him, struck at him, when the blow glanced, and accidentally struck one Lagus. Appellant and Blanchard were both robust young men; Lagus, an old, decrepit man. The fight occurred in front of Lagus' store. The question is, whether appellant can be guilty of an aggravated assault. He pleaded guilty to the assault on Blanchard, and was fined.

Article 486, Penal Code, declares, that an assault or an assault and battery may be committed, though the person actually injured was not the person intended to be injured; but it is well settled, if appellant was acting in self-defense when he accidentally struck Lagus, he is not responsible. In the Plummer case, where defendant, in defending against an unlawful attack upon himself, accidentally shot the wife of his assailant, this court held that the trial court erred in instructing the jury that defendant could be convicted of an aggravated assault under such circumstances; but stated the law to be, that where in the justifiable defense of himself against apparent danger of death or serious bodily injury, a party unintentionally or accidentally injures a bystander, he is guilty of no offense. Plummer's case, 4 Texas Crim. App., 310; Clark's case, 19 Texas Crim. App., 495.

In the case at bar, it does not appear that appellant was acting in self-defense. He provoked the contest by slapping Blanchard in the mouth, and brought on the necessity, if any existed, of striking at Blanchard with the axe helve. In striking at Blanchard with the axe helve he was in the wrong, and could not justify himself. If he had killed him it would have been manslaughter at least. A person can not avail himself of a necessity which he has knowingly and willfully brought on himself. Logan's case, 17 Texas Cr. App., 50; Reed v. The State, 11 Texas Cr. App., 517. There was no plea of jeopardy filed in this case. Brink's case, 18 Texas Cr. App., 347. The court did not err in refusing the special charges asked. They were not the law.

The judgment is affirmed.

Affirmed.

DAVIDSON, J., concurs. HURT, P. J., states that he is not prepared to agree or dissent, as it is a nice question.