(dissenting).
The majority reverses this conviction because the court did not instruct the jury on negligent homicide.
Appellant gave an unusual (if not unbelievable) explanation of how the baby met her death. He testified that in order to stop the baby from crying he held her up to eye level and let her drop on the bed. He related that as he turned to get a diaper he heard what must have been her head hit the wall.
On cross-examination, he testified that her death was completely accidental. The court charged on accident. This charge was more favorable to appellant than a charge on negligent homicide. The jury would have acquitted had they believed the homicide was an accident.
I would follow 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.
Heretofore this Court has held that a charge on a lesser included offense is not required unless the evidence raising such issue is that the accused is guilty and is guilty of only the lesser offense.
*901In Lewis v. State, 479 S.W.2d 74 (Tex.Cr.App.1972), this Court held that charges on the lesser offenses of aggravated assault and simple assault were not required in a robbery case where the court instructed the jurors to acquit if they found that Lewis did not commit the robbery. There the Court wrote:
“We also call appellant’s attention to our recent opinion in Dominguez v. State, 472 S.W.2d 268, where we had a similar contention before us and held that the trial court did not err in refusing appellant’s requested charge where the charge actually given was more favorable to him than the one requested. Therein we said:
“ ‘Appellant’s second ground of error is that the trial court erred in failing to grant his requested charge that if the jury had reasonable doubt as to appellant’s intent to rob, they should acquit him of the offense of robbery and find him guilty of simple assault.
“ ‘We find the charge given more favorable to appellant than the one requested because it instructed them that if they had a reasonable doubt as to his intent they should acquit appellant and find him not guilty.’ ”
In McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974), the conviction was assault with intent to commit rape. It was contended that a charge of the lesser offense of aggravated assault should have been given. The evidence necessarily had to show an aggravated assault for there to be enough evidence of assault with intent to commit rape, a greater offense. This Court held, unanimously, that no charge on the lesser offense of aggravated assault was required. The Court followed the correct rule and wrote as follows:
“Still further, merely because a lesser offense is included within the proof of a greater offense, a charge on the lesser is not required unless there is testimony raising such issue that the appellant, if guilty, is guilty only of the lesser offense. See Hale v. State, 164 Tex.Cr.R. 482, 300 S.W.2d 75 (1957); Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479 (1952).” (Emphasis Supplied)
Does the majority opinion change this well established rule and overrule all of the above and many other cases? If so, the majority should do so specifically and not leave two contrary rules or lines of decision to the bewilderment of trial judges, attorneys and researchers.
Doesn’t the majority opinion in effect require all lesser included offenses to be charged even though their omission is to the advantage of and favorable to a defendant ?
If it could logically be concluded th'at the trial court erred in refusing to charge on the lesser offense of negligent homicide, it was in favor of appellant because the jurors would have found him not guilty instead of convicting him of that offense had they found him not guilty of murder. See the dissent of this writer in Esparza v. State, Tex.Cr.App., 520 S.W.2d 891.
No error toward appellant has been shown. The judgment should be affirmed.