#### KAWCHARA v. STATE.

No. 16084.

Court of Criminal Appeals of Texas.

April 11, 1934.

J. E. Edmondson and P. Z. Sullivan, both of Bellville, for appellant.

Lloyd W. Davidson, State’s Atty., of Austin, for the State.

HAWKINS, Judge.

Conviction is for simple assault and battery; punishment being a fine of $5.

The assault was alleged to have been made on Frank Cavranovie — hereafter referred to as G. The assault occurred at a dance in Frydeck, Austin county, on the night of October 16, 1932. ' G. testified that, after dancing one number, he went out of the house to a sola water stand, and that Frank Machala struck at G., stepped back,, and then took a soda water bottle out of his pocket? and again started towards G., whereupon *he*hit -Ma-chala with a lantern; that G. then went to-his truck and got the crank out of it; about that time Joe Ciesleweiz — hereafter referred to as C. — jumped on G.’s back and held his-arms down to his side and appellant “grabbed” the crank from G., and, when G. got loose from C., appellant hit G. on the shoulder and then on the head; that the next thing G. knew some one was pouring water-in his face. Anton Haverland testified that he did not see the beginning of the fight, but saw G. running from appellant; that appellant was following with an automobile crank in his hand and hit G. twice with the crank, one time on the shoulder and once on the-head, the last blow knocking him down; that G. had his back to appellant and was running away when appellant hit him. G. and Haverland were the only state’s witnesses. Mrs. Frank Machala testified for appellant substantially as follows: She was the wife-of Frank Machala and was at the dance with, her husband. She saw G. at the dance and he appeared to be drunk. He parked his-truck across the entrance to the dance hall, and people had to walk around it to get into-the hall. After he danced one dance, he went outside and started a fight with witness’ husband, who was a small man, weighing about 140 pounds, while G. was a large-man weighing about 200 pounds. After G. and witness’ husband started fighting, G. went to the truck? and got the crank out of' it, “then O. came up to the back of G. and ap*433pellant to tlie front and appellant took the crank away from G.” Witness saw G. fall and saw people pouring water on him, hut did not see who hit him. Witness further testified that everything that appellant did that night was done to keep the peace and prevent trouble between G. and witness’ husband. Appellant testified as follows: “I was present at the dance on the night of October 16, 1932. I saw Erank G. there. He came in his truck and was drunk and talking very loud. X was sitting in my car on the outside. Prank G. was fighting with Prank Machala. He went to the track to get his crank and was cursing and talking loudly. I went over to separate them and X took the crank away from Prank G. but did not hit him with it. Everything that I did was to keep down trouble and to keep him from hurting someone. When I took the crank away from G. I told him that he must not fight, and he said, ‘You God-damned son of a bitch I am going to kill you,’ and he started for his truck. Prank and I have always been good friends. My wife and child were there in the car and when he started for his track, I was afraid that he might hurt them. That all happened in Austin County, Texas. The case against Prank Machala has been dismissed by the County Attorney. There is still a ease against Prank G. in this court.”

After defining an assault and battery, the court told the jury, if they found from the evidence beyond a reasonable doubt that appellant committed an assault upon the person of G. by striking him on the head with an automobile crank, to find him guilty and assess his punishment by fine of not less than five nor more than twenty-five dollars. No affirmative defensive charge was submitted.

Appellant excepted in writing to the charge given upon many grounds, one being that the court failed to instruct in an affirmative manner regarding the defense relied upon. In no way was the claimed defense pointed out in the written objections, but several special charges were requested upon the subject.

Special charge No. 1, requested by appellant, is in almost the precise language employed by the court in paragraph 1 of the instruction given. There was no necessity for repeating the general definition of an assault and battery.

In special charge No. 2, appellant sought to have the jury told that, if G. had assaulted M. with a car crank, and that appellant was attempting to quell the disturbance and keep the peace, and had disarmed G. of said crank and hit G., and used no more force than was necessary to end the disturbance, they should acquit. We fail to see the applicability of the charge. It is predicated on the jury finding that G. had'assaulted M. with a car crank. We do not so understand the evidence. He testified that he struck M. with a lantern, and that, when he went *to*the track to get the crank, he was disarmed by appellant and O.

Requested charge No. 3 would have told the jury that, if the violence used towards a person would not amount to an assault and battery where the party used such violence to preserve the peace, and used no greater force than to disarm such person, and in so doing struck him, the jury should acquit. We have been unable to find the evidence to support this requested charge. There was no evidence showing that appellant struck G. in trying to disarm him, but that, after having tak.en the crank from him, appellant struck G. with it.

Special charge No. 4 requested that the jury be told, if, viewed from appellant’s standpoint, he reasonably believed that G. had threatened to kill appellant, and had made a motion to carry said threat into execution, and then appellant struck G. with a crank, but used no greater forcé than was necessary to delay or stop G. from carrying such threat into execution, they should acquit. In connection with this special charge, appellant also requested special charge 4a relating to the same matter. We have likewise been unable to find the applicability of this charge. Appellant nowhere in the testimony given by himself or his witnesses says that he struck G. by reason of any threat which he feared G. was about to carry into execution. Appellant’s whole case rested upon a denial in toto of having hit G. at all, and that the only violence used by him was in disarming G. of the crank. The prosecution was not based upon the act of disarming G.

We do not take the time to discuss whether the special charges present correct propositions of law. It is our opinion that, whether or not they do, the evidence did not raise the issues sought to be submitted thereby.

The judgment is affirmed.