(dissenting).
The majority now reverses this conviction because the court did not charge on negligent homicide. The court charged on accident as follows:
“You are further instructed that no act done by accident is an offense. If you find and believe from the evidence that the injury sustained by Rene Espar-za, Jr., if any, or the death of Rene Es-parza, Jr., if any, was the result of an accident, or if you have a reasonable doubt thereof, then you will find the defendant not guilty.”
The appellant gave a rather unusual explanation of the cause of death of the baby. He testified that in order to stop the baby from crying he took the child by the legs and began to swing him around so “he would get dizzy and go to sleep.” The baby’s head hit the chest of drawers and he died thirteen days later as a result of the injuries.
The testimony relied upon by the majority to require a charge on negligent homicide is insufficient to raise such an issue.
An element of the offense of negligent homicide is found in Article 1232, Vernon’s Ann.P.C. (1925, as amended), and is as follows:
“To constitute this offense there must be an apparent danger of causing the death of the person killed or some other.”
Where was there an apparent danger of death either as viewed from the standpoint of the appellant or in all of the facts of the case?
Palafox v. State, 484 S.W.2d 739 (Tex.Cr.App.1972), and Shelton v. State, 367 S.W.2d 867 (Tex.Cr.App.1963), which hold that where a charge on accident is given no charge on negligent homicide is required, should be followed.
Assuming that the court erred in not giving a charge on negligent homicide, the question of harmless error should be considered. The Legislature provided that this Court should not reverse a conviction because of errors in the charge unless the defendant was injured. Article 36.19, Vernon’s Ann.C.C.P., provides, in part, that where the requirements of Articles 36.14, 36.15 and 36.16, V.A.C.C.P., relating to court’s charge have been disregarded “ . . . [t]he judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. . . . ”
How could the jury have reached a different verdict, especially where the court gave a charge on the broader defense of accident ?
See the dissent of this writer in Stiles v. State, Tex.Cr.App., 520 S.W.2d 894.