In his motion appellant renews complaint of the refusal of his special charge No. 4, which is as follows:
"Gentlemen of the Jury: If you find from the evidence in this case that the deceased Davis was either lying or standing in the road at the time he was struck and killed, if he was, by defendant's automobile; then, in determining whether or not the defendant is responsible for such killing you are instructed that the defendant had the right to rely upon the belief that said Davis would act as an ordinarily prudent person would act for his own safety under the circumstances, and had the right to believe that said Davis would get out of the way of his, the defendant's on-coming car, in time to avoid injury, and in this connection you are further instructed that if the defendant did not discover the apparent intention of the deceased *Page 360 Davis, to remain in the road, in time to prevent a collision with said Davis, then, in such event the defendant would not be guilty of any offense, and you will find him not guilty." There are no facts in this record calling for the giving of such a charge. No witness testified that appellant was acting upon any belief that deceased would or could get out of the way before he was struck by appellant's car; nor do the facts make the guilt of appellant dependent alone upon whether the collision could have been avoided. The doctor testified that the ribs and chest of deceased were crushed, and that this caused his death. Deceased was dragged under the car, after being struck by the automobile, a distance said by a man, who measured the prints of the dragging, to be more than one hundred and fifty feet. The brakes of appellant's car were shown to be in good condition. The road where the collision occurred was sandy and not slippery. The car was making more than thirty miles an hour at the time. The refusal of the charge complained of was not erroneous.
Special charges 7 and 8 were refused, and this is urged as error in the motion. Said charges sought to have the jury told that unless they found from the evidence that appellant intentionally failed to exercise that degree of care and caution in the operation of his car, which an ordinarily prudent person would have exercised, they should acquit. We are not able to agree with appellant that there can be in law such a thing as intentional negligence. The two words do not fit in the same legal picture. Their parentage is not from the same line, though their offspring may resemble. A wicked purpose rising to the dignity of intent begets malice, whose child is murder of grievous type. Negligence, — exhibiting itself in want of care, neglect of duty, failure to observe, lack of prudent regard for the rights of others, — may hurt more men and things, but lacking the element of intent commits a crime not punished so severely at the hands of the law. We could not agree with appellant that either of said special charges presented a correct proposition of law. It is certain that if this jury had believed beyond a reasonable doubt that appellant intended the murder of deceased, they should have found him guilty of murder with malice.
We again say that since the conviction was for negligent homicide, we see no possible harm which could come to appellant from what he claims was an erroneous charge on murder. Appellant was not convicted of the graver offense, nor was *Page 361 there anything in said paragraph of the charge which could have induced or caused the jury to convict of negligent homicide.
Appellant as a witness admitted that he saw, — when some distance away, — that the object which he was about to strike with his car was a man; and claimed that he did his best to stop his car, but evidently the jury did not believe him, and the proof showed without dispute that appellant drove his car a distance estimated at from seventy-five to a hundred and fifty feet with deceased under the car, and that he then put his car in low gear and pulled it to one side across the road while deceased was still under the car. The testimony further showed that after doing this appellant put his car in reverse and backed it off of the body of deceased, turned it around and drove back up the road in the direction from which he had come. No one got out of the car to see how badly hurt deceased was. There were nearby houses, one of which was the home of deceased, and no visit was made to these to get aid or to report the occurrence. The facts showed that after the party had gone some distance back up the road from the scene of the collision, they met a man going down in that direction and told him there was a man in the road who had been run over.
If the jury believed the testimony of the doctor to the effect that deceased was crushed to death, they were justified in their verdict and we would have no right to reverse the case for lack of evidence supporting the judgment of guilty of negligent homicide.
Not being able to agree with appellant's contentions, the motion for rehearing is overruled.
Overruled.