Souther v. State

Citations

• 18 Tex. Ct. App. 352
• 1885 Tex. Crim. App. LEXIS 109

Syllabus

<p>1. Assault and Battery, as defined by the Penal Code, article 484, does not consist of every violent act against another, but only of “ any unlawful violence upon the person of another, with intent to injure him,” etc. Reasonable force exerted for the purpose of preventing injury or destruction of one’s own property is not an assault.</p> <p>2. Same — Charge of the Court — Case Stated.— While the carriage of the defendant was standing in the street in front of a hotel, an omnibus was driven up and was backing down upon the carriage when the defendant told the driver of the omnibus not to back against his carriage or he would hit him with a rock; but the driver of the omnibus disregarded the warning and continued to back his omnibus until it either struck or was about to strike the carriage, which, being the lighter vehicle, was liable to be crushed and injured by the impact of the omnibus. While the omnibus was thus being backed against his carriage, or just as they were thus brought in collision, the defendant struck the driver with a stone. The trial court did not instruct the jury upon the law justifying force in defense of property, and the defense not only excepted to the charge of the court for this omission, but asked an instruction sufficient to call the attention of the court to the omission; which special instruction was overruled and disregarded. Held, that there was error in the charge of the court, and in the refusal to instruct the jury upon the law applicable to the case as made by the evidence.</p>