We have examined the record again in the light of appellant's motion. According to state witnesses, appellant at night was riding a horse a short distance behind a car occupied by deceased and another. Appellant called to them to stop, and when they did not he fired his pistol, and a witness who saw the shot testified that the blaze went toward the car. That the pistol was pointed at the car was evidenced by the fact that deceased, one of the occupants of the car, was killed by the bullet. Appellant swore that he shot first merely to stop the car and had his pistol pointed toward the ground, and that his horse was rearing when he fired the second shot. This would not render erroneous the submission of the issue of murder. What we said in Banks v. State, 211 S.W. 217, seems to have direct application to the case before us as made by the State. There seems no question of the fact that appellant was shooting his pistol upon the public streets of the City of Terrell in violation of the law.
Appellant insists that the court should have submitted the issue of negligent homicide of the first degree. He testified that he shot twice but did not claim that either shot was unintentional. He said he shot each time in the same direction, and, as above stated, asserted that he fired at the ground. He swore: "I pulled the trigger with the intention of stopping the car; I pulled the trigger the next time intending to stop the car. * * * Just as the car was crossing the interurban track I fired both shots * * * it was a pretty rough street there." 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 than negligent homicide of the first degree. This is the plain statement of our statute. See Art. 1234, 1925 P. C. The trial court did not err in refusing to submit the issue of negligent homicide of the first degree. Same could only arise when the homicide was committed as the result of a negligent act which is not a violation of the law. The facts in Egbert v. State, 176 S.W. 560, are entirely different from those in the case before us. In said case there was no shooting on the street of a town or city. What was there said by this court is not contrary to what has been here said.
We are not in accord with the contention of appellant that his special charge should have been given wherein he sought to have the jury told that even though he intentionally fired the shot that killed deceased, yet if same was fired to attract attention in order to cause the occupants of the car to stop, and there was no *Page 305 intention to kill, he would not be guilty of murder. The court below had told the jury in his main charge that if one purposely and intentionally fired a pistol at an automobile, knowing that same was occupied, and killed some person therein, he would be guilty of murder, although he had no specific intent to kill, which we think to be a correct statement of the law. The learned trial judge had also told the jury that if appellant had discharged his pistol on the streets of Terrell without the apparent intention of taking life, and the death of deceased resulted, he could only be convicted of negligent homicide of the second degree.
The contention is again urged that the law of manslaughter should have been given in the charge, and Carter v. State,17 S.W. 1102, is cited. In that case the defense was based on the proposition that the posse of which the accused was a member and which was searching for deceased, was fired on by the latter, and that in self-defense the posse returned the shot and killed the deceased. In cases of self-defense, such as the Carter case, supra, the question as to the mental condition of the accused when the fatal shot was fired often becomes close, and we have reversed such cases when it appears that there was evidence before the jury upon which they may have based a finding of such anger, rage, excitement, etc., as to render the mind incapable of cool reflection, in which cases the trial court seemed to us to usurp the province of the jury by refusing to charge on manslaughter, but we find nothing in the instant case giving rise to any theory of self-defense or any action on the part of deceased or those with him upon which agitation, excitement or passion might be predicated.
Believing the case correctly disposed of, the motion for rehearing will be overruled.
Overruled.