The appellant insists that we were in error in our original disposition of this case in holding that the trial court committed no error in failing to charge the jury relative to the law of negligent homicide, and insists that the original opinion in the Snyder case, 102 S.W.2d 425, should be adhered to rather than the opinion on rehearing in such cause. In such opinion on rehearing we held that an indictment alleging that while intoxicated accused by accident and mistake caused his automobile to collide with another automobile, causing the death of an occupant of such other automobile, was insufficient to charge the offense of negligent homicide. *Page 65
It is true that under Article 695, C. C. P., an indictment for murder will include all the lesser degrees of homicide, but that does not of necessity mean that an indictment charging any of the lesser degrees of homicide will include murder. We also confess ourselves unable to see how under an indictment charging an offense voluntarily and intentionally done, such allegation can be supported by proof of one done by accident and mistake.
It would seem to us the better reason to be as held by Judge LATTIMORE in the opinion on rehearing in Snyder v. State, supra, that the allegations in this indictment remove the same from the domain of negligent homicide, and that the trial court did not err in failing to charge the jury on the law relative thereto. We see no reason for changing our ruling therein, therefore this motion for rehearing is overruled.