Appellant was convicted of negligent homicide in the second degree, and his punishment assessed at a fine of $2500; hence this appeal. *Page 408
Appellant presents a number of assignments, but it is only necessary to discuss one; that is, does the evidence sustain the conviction for negligent homicide of the second degree? The testimony on the part of the State tended to show a homicide on malice. while that on the part of defendant tended to show a homicide committed in self-defense against an attempt to rob, or the appearance of an attempt to rob, from appellant's standpoint. Both theories, and the evidence to sustain them, indicate an intentional killing. Our statute defines negligent homicide of the second degree as a homicide committed by negligence of the party doing it, while such party was in the performance of an unlawful act, the same being within the category of misdemeanors, or, such act not being a penal offense, would give just occasion for a civil action. It also provides that the homicide must be the consequence of the act done or attempted to be done, and that there must be no apparent intention to kill. As we understand it, merely carrying a pistol, which was intentionally used to kill, could not result in negligent homicide, because, in the first place, carrying the pistol was not the proximate cause of the death, and shooting with intent to kill showed an apparent intention to kill. By way of illustration as to what would constitute negligent homicide if one should be unlawfully carrying a pistol, and carry it in such negligent manner as that it should fall from his person onto the sidewalk and would be discharged and kill a bystander, this would constitute negligent homicide, because the pistol was carried unlawfully, and so negligently as that it was discharged on a public thoroughfare where people were passing. In such case there was no apparent intention to kill. If we look to the record, as stated before, the State's theory was to the effect that appellant entertained malice toward deceased, Peppers, because the latter was interfering with a woman whom appellant was keeping. And according to its contention, the offense would have been at least manslaughter, because the shooting was not shown to have been necessary, and appellant may have been influenced in his action by terror on account of an anticipated attempt to rob him. Appellant's own evidence (and he is the only witness testifying on this point) states that he shot at deceased because he believed he was advancing on him to rob him. From either standpoint it can not be claimed there was any negligence, because there was an intention to kill. We accordingly hold that the court erred in submitting the issue of negligent homicide at all, even if it be conceded that same was properly submitted in the charge, which is not the case here. We further hold that inasmuch as appellant has been acquitted of all degrees of culpable homicide above that of negligent homicide, and the evidence showing that he is not guilty of that offense, the prosecution must be dismissed, unless the State can produce evidence showing negligent homicide.
The judgment is reversed and the cause remanded.
Reversed and remanded. *Page 409