Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 255

1875.] CHAMBERS v. THE STATE. - .- 255
Opinion of the Court.
fight. Defendant had a knife and also a pistol. After several
blows were struck, the knives of both parties were put up at the
instance of the bystanders, when the fight was renewed. Soon
after, it was discovered that the defendant was striking Thompson
over the head with his pistol, being a pocket " Derringer,"
or police pistol, weighing, perhaps, two pounds. When the
fight was over, the head of Thompson showed three gashes, as
stated by the witnesses, and which were proved to be serious
wounds.
In view of the evidence, there was no error in refusing to
charge the law of simple assault and battery, because, as stated
by the judge in refusing the instruction, it was not applicable
to the case.
It was further objected that, under the instruction of the
court, the jury could not consider the pistol, and the use made
of it, in any other sense than as a deadly weapon. The indictment
charges that the pistol was a deadly weapon, and states
how it was used; that is, that the defendant struck and beat
Thompson with the pistol, and not that he attempted to shoot
him.
The evidence fully sustains the charge, and it is not perceived
how it could have been regarded by the court and jury
n any other aspect than an aggravated assault and battery
under the statute and former adjudications upon it. The possession
of the pistol and the use made of it were unlawful acts,
and not necessary for self-defense. The defendant was the.
aggressor, and brought on the difficulty by the attack, and
struck the first blow under circumstances not authorized by
law. As charged by the court, no words spoken, however
insulting, could justify an assault, or be considered by the jury
for any other purpose than as mitigating the punishment.
Under a full and fair charge of the law the jury returned a verdict
against the defendant, and no such case being presented as
calls for the interposition of this court to set aside their finding,
the judgment is affirmed.
Affirmed.