The offense charged is murder, and the punishment assessed is twelve years in the penitentiary.
The record discloses that the deceased was a 16-year-old boy and was in company with another young man driving an automobile along the streets of Terrell at night and that the appellant, a constable of Kaufman County, fired into the car, killing the deceased. The appellant's version of the affair was to the effect that he thought the car was being driven by drunken negroes and that he wanted to stop them and make an investigation to see if they were drunk, and that he fired the pistol twice, one shot into the ground and that he could not tell how the other shot was fired. He admits that he fired it in the direction of the car, but that when the first shot was fired his horse went wild and began jumping and rearing and that after the other shot was fired the car stopped and he rode up behind it and found that he had struck the deceased. Appellant and deceased's companion started to the sanitarium with deceased and he died before reaching there. The above is a succinct statement of the practically undisputed facts in the case.
Appellant raises many questions on this appeal. Some of them, however, we think are not of sufficient importance to justify discussion. His contention that the court was in error in submitting the issue of murder cannot be sustained. We think murder was clearly in the case and that the jury was warranted in convicting for this offense. Marshall v. State,182 S.W. 1106.
Appellant seriously complains at paragraph 9 of the court's charge which in effect instructed the jury that if any person *Page 303 shall purposely and intentionally fire a pistol at an automobile, knowing at the time that persons are occupied therein, and thereby kill any of such occupants, such offense would be murder, although the person firing the pistol had no specific intention to kill. We think this charge is a correct statement of the law and is applicable to the facts in the instant case.
In addition to the foregoing charge, the court very properly submitted the issue of negligent homicide in the second degree, and a consideration of the charge as a whole convinces us that the paragraph complained of is not erroneous. See Marshall v. State, supra. Davis v. State, 211 S.W. 589; Banks v. State,211 S.W. 217.
Appellant also contends that the court should have submitted the issue of manslaughter in his charge to the jury. In our judgment the record is wholly silent as to any element which could probably reduce this killing to the offense of manslaughter. The appellant is either guilty of murder as found by the jury, or he is guilty of negligent homicide in the second degree, and it occurs to us that there is nothing in the record presenting any other theory of the case.
Appellant also complains because the court failed to charge on negligent homicide in the first degree; it being his contention that as appellant was a peace officer and had a right to carry a pistol that his shooting at the automobile was not an unlawful act. We cannot agree with this contention. On the contrary, we think that under the appellant's own testimony his act in shooting toward the automobile, knowing that it was occupied, and even conceding that he believed that it was occupied by drunken negroes, was an unlawful and a reprehensible act, and it occurs to us that there is nothing in his own testimony that even tends to raise the issue of negligent homicide in the first degree.
We have not attempted to discuss in detail each of the questions sought to be presented by appellant, but each of them have had our careful consideration, and we have reached the conclusion that no reversible error is shown in this record.
It is, therefore, our opinion that the judgment should be in all things affirmed.
Affirmed.
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. *Page 304
ON MOTION FOR REHEARING.