On Appellant’s Motion for Rehearing.
HAWKINS, J.Appellant has filed a motion for rehearing in which it is again insisted that the trial .court should have charged on negligent homicide. Appellant claims that he fired with a shotgun at the casings on the automobile and that he did not kill deceased; it seems to be admitted by the state that wounds from which deathi resulted were not inflicted with a shotgun; this being true, ■the fatal shots must of necessity have been fired by some member of the posse other than appellant. If appellant did not fire the shot which caused death, .how could he be guilty of negligent homicide, or 'how couild the issue •as to him arise? We have been at some loss to know just how the trial judge would have gone about formulating a charge on negligent homicide under the .circumstances. No aid was tendered' him in the nature of a special charge; an objection for omitting such instruction was as far as appellant went. To be sure, this is all that was necessary if the issue was in the case. Our statute (article 76, Pen. Code 1925) in very positive terms says there can be no accomplice in “negligent homicide.” The very elements of the offense, in the absence of such a statute, render it absurd to think of one in advance advising or encouraging another to commit “negligent homicide.” Equally unreasonable does it seem to contemplate that people may conspire or agree in advance to commit “negligent homicide.” This whole case revolved around the contention that appellant and the other members of the posse'were acting together to find and kill the Mexicans; instead the .posse found and killed deceased and wounded his companion. The court instructed the jury as follows:
<i ⅜ ⅜ * ipjjg mere presence of the defendant at the time and place of the killing is not sufficient to show that he was a principal offender, but the evidence must go further and show beyond a reasonable doubt that the defendant either agreed to the commission of the offense or aided by acts or encouraged by words or gestures those engaged in the killing of the deceased, and unless you find and believe from the evidence, beyond a reasonable doubt, that the defendant agreed to the commission of the offense, if any, or aided by acts or encouraged by words, or gestures, those who killed the deceased, then you ioill find the defendant not gmlty and so say by your verdict.”
If appellant had requested it, he might have been entitled to an elaboration of the foregoing instruction advising the jury that, if there had been no agreement to kill, and that appellant fired at the casings, not thereby intending to encourage others of the posse to shoot, but that some member of the posse, acting upon an independent impulse to which appellant was in no way a party, fired and killed deceased, appellant would not be guilty. No such instruction was requested, and no objection was urged to the charge given. It seems to have been satisfactory to appellant. There may be cases in which the principles of negligent homicide have been applied where the facts show that wounds resulting in death were inflicted by some one other than accused, but, if so, our attention has not been directed to them.
Appellant’s motion for rehearing is overruled.