Appellant excepted to the charge in the following language: "The court nowhere in said main charge defines the term 'accidental' nor does the court give in charge to the jury the law governing homicide by accident or misfortune." In connection with this exception appellant tendered a special charge and asked that it be given in lieu of the fifth paragraph of the main charge. The requested charge is in the exact language of the 5th paragraph of the main charge. This is explained by a statement of the learned trial judge who says in qualifying the bill: "The objection was made to the court's charge as first presented, a requested charge being presented to correct paragraph five of the charge, whereupon the court interlined the charge so that when presented to the jury the same conformed to the exact language of the requested charge." *Page 258
The fifth paragraph of the charge now reads as follows: "If you believe from the evidence that the deceased met his death as a result of an accidental gunshot wound, or if you have a reasonable doubt whether the deceased met his death as a result of an accidental gunshot wound, then in either event you will acquit the defendant and say by your verdict 'not guilty'."
It is impossible for this court to know how said fifth paragraph read prior to its correction, but if further exception was urged after the interlineation the record fails to show it. If appellant was still dissatisfied with the charge as corrected it would be necessary for him to file exception to the amended charge in order to avail himself of such objection. Hall v. State, 97 Tex.Crim. Rep., 260 S.W. 878. By persuasive argument it is now urged that the court should have defined what was meant by the term "accidental." From what has been said it follows that we do not think this question is properly before us, but if so, we are of the further opinion that it was not necessary for the court to define the term "accidental." The issue of accidental killing was in no way complicated by the charge as involving a careless or negligent handling of the gun. The word "accident" is of such common meaning that we think under the facts of the present case the court was not called upon to explain or define it. Cases might arise where the issue of accident was so involved with negligence that it would be necessary for the court to differentiate them so the jury might not be confused in passing upon the issues, but that does not arise in the present case.
The other matters complained of in the motion we think were sufficiently discussed and properly decided in the original opinion.
The motion for rehearing is overruled.
Overruled.