Offense murder, punishment twenty years in the penitentiary.
Appellant was a state game warden. In company with Deputy Game Warden Gates, he visited a ranch of which deceased, Bud Stoner, was foreman, for the purpose of securing *Page 159 permission for his brother to hunt on the ranch. Arriving there about dark, he and deceased, Bud Stoner, began drinking. The testimony shows they were very friendly. Gates, Stoner and appellant left the ranch to go through the pasture to look for "head lighters" — that is, night-time hunters, who were violating the game laws. Appellant and Stoner continued drinking, Gates not participating. Returning, some banter was exchanged between them about the speed of appellant's car. Appellant in answer began racing his car, finally leaving the road and running into two mesquite trees, which tore the top off the car, and inflicted some injury on appellant. Gates then took the wheel. Going through a gate, witness, Gates, went to fasten it, and while there heard a shot. Deceased said, "Look out, Simmons, or you will hit me." About three shots were fired. The parties had immediately preceding this been joshing each other. Going back, witness, Gates, took the pistol away from appellant and threw it away. Deceased said, "I am shot." Appellant said about the time, "Let's get a doctor. I'll get a doctor. Bud, did I shoot you? I didn't shoot you, did I, Bud?" Witness Gates phoned for a doctor, who on the road found appellant about a mile from the scene of the difficulty with his car in a ditch, and the engine running wide open. The lights were on. Steam was escaping from the radiator. Appellant had his hands dropped down to his side and made no answer to questions of witness. "Didn't even look around," according to witness. Deceased was taken to Corpus Christi, was fully conscious on the road down there, and told witness and his companion that he was shot by a "quirvolo Mexican," interpreted to mean a yellow, dressed-up Mexican. Arriving at the hospital, still fully conscious, the state's witness, McClendon, a police officer, testified to statements of deceased in part as follows:
"It seems to me that it was Mr. Welder who first asked him (Stoner) if Simmons had shot him. As to how many people were questioning him there, well, Mr. Welder asked some, Mrs. Welder asked some, I asked some, and Doctor Nast asked a few. I couldn't say what he said in reply to Doctor Nast's questions — I don't remember what Doctor Nast asked him, but I know he was talking to him. What did he say in reply to Mrs. Welder's questions? Well, I think she was trying to get him to tell who killed him or who had shot him.
"Q. And he said a Mexican shot him?
"A. It came up several different times. * * *
"He (Stoner) at first said that a Mexican had shot him. There was something else said in between there, and I don't *Page 160 know just what it was, but then the question was asked him, 'Did Simmons shoot you?' and he said 'Yes.' At the time he made the statement about the Mexican shooting him, the question was asked, I believe, 'Do I know him?' and he said, 'Yes.' There were several developing that, but I couldn't say positively who was asking the questions. It seems to me that it was Mr. Welder that asked the particular question, 'Do I know him?' Stoner's reply to that question was 'Yes.' Then the question was asked him, 'Did Simmons shoot you?' I do not know who asked him that question, but somebody asked the question, 'Did Simmons shoot you?' He (Stoner) just turned over on the operating table on his side and just groaned out, 'Oh, hell, yes,' just what he said. * * *
"After Bud Stoner had said, 'Oh, hell, yes,' in reply to the question, 'Did Simmons shoot you?' I think the question was propounded to him, 'Had you-all ever had any trouble?' and he answered, 'A damned argument.' " * * *
The court charged on murder, but submitted no defensive issues except intoxication as a mitigating circumstance. Failure to charge on the issue of negligent homicide was made the subject of timely exception and is urged on this appeal as error. We think the above evidence unquestionably raised the issue. There appears wholly lacking in the evidence any motive for the killing unless deceased's reference to a "damned argument" may be so construed. The only argument, according to state's witness, Gates, seemed to have been with reference to the speed of appellant's car, already referred to. The parties were joking each other up to the very moment of the difficulty. Appellant was maudlin drunk and deceased practically so, according to Gates. The statements of deceased and his actions after the trouble fail to show any feeling or ill will by him whatever against appellant and indicates instead a desire to protect appellant. The only flash of a pistol seen by Gates was not towards deceased.
If the pistol of appellant was fired with no apparent intention to kill, but under circumstances making apparent the danger of causing the death of the person killed or some other, the issue of negligent homicide is present in the case. McPeak v. State, 80 Tex.Crim. Rep.; Sewall v. State, 148 S.W. 569; Howard v. State, 25 Tex.Crim. App. 686.
The above rule is made plain by the following provisions of the Penal Code:
"To constitute this offense there must be an apparent danger of causing the death of the person killed or some other." *Page 161
"To bring the offense within the definition of negligent homicide either of the first or second degree, there must be no apparent intention to kill." (Arts. 1232 and 1235, P. C.)
An ingenious and able brief has been filed by counsel for the state, insisting that negligent homicide of the first degree does not exist as an offense because under its definition no state of facts could be proven which would come within its provisions in this:
It is defined as a homicide by negligence, happening in the performance of a lawful act, a "lawful act" being defined as one not forbidden by the penal law and which would give no justoccasion for a civil action. Art. 1231, P. C. The position is taken that any homicide by negligence gives just occasion for a civil action under our law and therefore the offense cannot exist. "Lawful act," as used in the Penal Code, we think, means the act of anyone apart from negligence. If the statute had defined the "negligent performance of a lawful act" as one giving no just occasion for a civil action, the state's contention would probably be sound. Appellant was an officer. He violated no law or legal duty in simply having and firing a six-shooter in an open pasture. Apart from negligence this act per se gave no right of action for damages. However, we need not rest our decision upon the above reasoning. It finds ample and, we think, conclusive support in Art. 1234, P. C., itself, which provides:
"Throwing timbers by a workman from the roof or upper part of the house in a public street or highway, or where a number of persons are known to be around the house, or discharging firearms on or near a public highway other than a street in a town or city in such manner as would be likely to injure persons who might be passing, are examples of negligent homicide of the first degree, in case of death resulting therefrom. If death is caused by the careless discharge of firearms in a public street of a town or city, the offense will be of a higher degree."
These examples of the legislative interpretation of this offense would all be impossible under the state's theory.
Justice Lattimore in the negligent homicide case of Gribble v. State, 210 S.W. 215, uses the following language:
"The act, if any, of appellant which caused the death of the boy, was the turning over of the boat, and this act is not a misdemeanor, nor per se would the same give just occasion for a civil action."
We might say in passing that the state's interpretation, if correct, would serve only to make the offense negligent homicide *Page 162 of the second degree, as an unlawful act as part of such offense is defined as "such acts, not being penal offenses, as would give just occasion for a civil action." Art. 1240, P. C.
The admissibility of the various statements of deceased made at the hospital quoted above is the subject of bills of exception properly raising the point.
The statement "a damned argument" was inadmissible. The statement of a fact not connected with the immediate cause of death is not admissible as a dying declaration. Ex Parte Barber, 16 Tex.Crim. App. 369; Winfrey v. State, 41 Tex. Crim. 538. The remainder of this statement is of very doubtful admissibility, but since its surrounding facts do not appear to have been fully developed and its effect was not particularly harmful, we forego discussion or decision of point involved.
In view of another trial we will not discuss or pass on the question of the sufficiency of the evidence to sustain the charge of murder.
For the error pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.
ON MOTION FOR REHEARING BY STATE.