Kuhler v. State , 45 S.W.2d 973 ( 1931 )

HAWKINS, J.

Conviction is for aggravated assault upon John Schumacher; punishment being a fine of $25.

The prosecution was under subdivision 2 of article 1147, P. C. (1925), which provides that an assault or battery becomes aggravated when committed in any place where persons are assembled for the purpose of innocent amusement. A dance was in progress at a place called “Rhineland Hall.” Appellant claims to have been appointed as one of the managers to keep order. A disturbance arose between two boys who went outside of the hall and were followed by a number of others. The prosecuting witness says that when he went out he found appellant standing there with a stick in his hands; that, when he declined to put it down at the request of prosecuting witness, he took it from appellant and threw it away; that he made no movement at any time to make any attack upon appellant, but that appellant struck prosecuting witness above the eye, making a pretty bad wound. Another witness testified to practically the same state of facts. Appellant denied that the prosecuting witness took a stick away from him, and says that, if he ever struck prosecuting witness, he had no knowledge of it; that some one grabbed him from behind and “slung” him against the wall of the building, which stunned him, and he could not see exactly who was in front of him. He declined to say that he did not hit the prosecuting witness. He said, “If I did I didn’t know it. I hit someone when they slung me against the building.”

Appellant requested three special charges, all of them bearing upon the question of self-defense. These were refused by the court, at which action appellant complains. We fail to find any issue of self-defense in the case, and the court properly refused to submit such issue to the jury.

In his exceptions to the charge of the court, appellant objected to the instructions because the same nowhere gave the defendant any affirmative defense “as requested by the defendant.” The only instructions we find in the record which were requested by appellant are those already referred to on the issue of self-defense. It does not clearly appear from appellant’s testimony whether it was his contention that, if he struck the prosecuting witness, it occurred as he was being “slung” against the . building by some one else. If this was the contention, the objection to the-court’s charge was not sufficiently specific on that point, as required by the statute. Article 658, C. C. P. (1925). This being a misdemeanor case, if appellant desired a charge upon the issue last suggested as probably raised by his evidence, he should have submitted a special charge upon that point, as his objection to the court’s charge was ’ entirely too general to call the court’s attention to the particular matter which may have been in appellant’s mind. Simpson v. State, 87 Tex. Cr. R. 277, 220 S. W. 777; Hand v. State, 88 Tex. Cr. R. 422, 227 S. W. 194; Jones v. State (Tex. Cr. App.) 20 S.W.(2d) 1007; Sayeg v. State, 114 Tex. Cr. R. 153, 25 S.W.(2d) 865.

Appellant complains in bill, of exception No. 4 because the prosecuting witness was not permitted to answer the following question: “Who all were in this fight out there and trouble going on?” The trial court sustained objection to said question. The bill bringing the matter forward is entirely insufficient, in that it fails to set out what the answer of the witness would have been to the question propounded. It is patent that this court is unable to appraise the bill in this condition because we are in no wise apprised what the excluded evidence would have been.

Finding no error in the record, the judgment is affirmed.