ON STATE’S motion for rehearing.
GRAVES, Presiding Judge.The state challenges the correctness of our conclusion that the facts are insufficient to support the conviction.
We are unwilling to affirm a conviction for a homicide where the facts fail to reflect that the deceased named in the state’s pleading came to his death as the result of some act or agency on the part of the accused. To agree with the state here would require us to so hold.
The state claims that the defensive issue, which we suggested be given in the event of another trial, would call for and make an application of the law of contributory negligence, which is not a defense to negligent homicide.
In making the suggestion, we did so upon the theory that the facts there relied upon tended to show the non-existence of negligence on the part of the appellant, as alleged by the state, rather than contributory negligence on the part of the deceased.
We remain convinced of the correctness of the conclusion expressed originally, and the state’s motion for rehearing is overruled.